SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: October [__], 1996
(Date of earliest event reported)
Asset Securitization Corporation
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(Exact name of registrant as specified in its charter)
Delaware 033-49370-01 13-3672337
(State or Other Juris- (Commission (I.R.S. Employer
diction of Incorporation) File Number) Identification No.)
Two World Financial Center, Building B, New York, New York 10281
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(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (212) 667-9300
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This Document contains exactly ______ Pages.
<PAGE>
ITEM 5. OTHER EVENTS
On October 22, 1996, Asset Securitization Corporation (the "Company")
caused the issuance, pursuant to a Pooling and Servicing Agreement dated as of
October 1, 1996 (the "Pooling and Servicing Agreement"), by and among the
Company, as depositor, AMRESCO Management, Inc., as servicer (the "Servicer"),
CRIIMI MAE Services Limited Partnership, as special servicer (the "Special
Servicer"), LaSalle National Bank, as trustee (the "Trustee"), and ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent"), of Asset Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1996-D3 (the
"Certificates"), issued in nineteen classes. The Class A-1A, Class A-1B, Class
A-1C, Class A-1D, Class A-CS1, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates (the "Publicly Offered Certificates") were sold to Nomura
Securities International, Inc. ("NSI") pursuant to an Underwriting Agreement
dated as of October 16, 1996, between the Company and NSI, as underwriter. The
Class A-CS2, Class B-1, Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1,
Class V-2 and Class R Certificates (the "Privately Placed Certificates") were
sold to NSI pursuant to a Purchase Agreement dated October 22, 1996, between the
Company and NSI, as placement agent. The Publicly Offered Certificates had an
aggregate principal balance as of October 22, 1996 of $88,676,550 and the
Privately Placed Certificates had an aggregate principal balance as of October
22, 1996 of $93,909,443.
In the aggregate, the Certificates represent the entire beneficial
ownership interests in a trust fund consisting of 113 commercial mortgage loans
and a participation interest in a mortgage loan purchased by the Company
pursuant to the Mortgage Loan Purchase and Sale Agreement, dated as of October
22, 1996 (the "Mortgage Loan Purchase and Sale Agreement"), by and between the
Company and Nomura Asset Capital Corporation, as seller.
Capitalized terms used herein and not defined herein have the same meanings
ascribed to such terms in the Pooling and Servicing Agreement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Item 601(a) of
Regulation S-K
Exhibit No. Exhibit No. Description
4.1 4 Pooling and Servicing Agreement,
dated as of October 1, 1996.
10.1 10 Mortgage Loan Purchase and Sale
Agreement, dated as of October
22, 1996.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ASSET SECURITIZATION CORPORATION
By:
Perry Gershon
Vice President
Date:
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Item 601(a) of
Regulation S-K
Exhibit No. Exhibit No. Description
<S> <C> <C>
1 4 Pooling and Servicing Agreement, dated as of
October 1, 1996.
2 10 Mortgage Loan Purchase and Sale Agreement,
dated as of October 22, 1996.
</TABLE>
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ASSET SECURITIZATION CORPORATION,
DEPOSITOR
AMRESCO MANAGEMENT, INC.,
SERVICER
CRIIMI MAE SERVICES LIMITED PARTNERSHIP,
SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
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POOLING AND SERVICING AGREEMENT
Dated as of October 1, 1996
------------------------------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1996-D3
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
SECTION 1.02. Certain Calculations
SECTION 1.03. Certain Constructions
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase and Sale Agreement
SECTION 2.02. Acceptance by Custodian and the Trustee
SECTION 2.03. Representations and Warranties of the Depositor
SECTION 2.04. Representations, Warranties and Covenants of the Servicer and
Special Servicer
SECTION 2.05. Execution and Delivery of Certificates; Issuance of Lower-Tier
Regular Interests
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the Mortgage
Loans
SECTION 3.02. Liability of the Servicer
SECTION 3.03. Collection of Certain Mortgage Loan Payments
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts
SECTION 3.05. Collection Account; Distribution Account; Upper-Tier Distribution
Account; Default Interest Distribution Account; and Excess
Interest Distribution Account
SECTION 3.06. Permitted Withdrawals from the Collection Account
SECTION 3.07. Investment of Funds in the Collection Account, the REO Account,
the Lock-Box Accounts, the Cash Collateral Accounts, the Interest
Reserve Account and the Reserve Accounts
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions and
Fidelity Coverage
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing Compensation
SECTION 3.13. Reports to the Trustee; Collection Account Statements
SECTION 3.14. Annual Statement as to Compliance
SECTION 3.15. Annual Independent Public Accountants' Servicing Report
SECTION 3.16. Access to Certain Documentation
SECTION 3.17. Title and Management of REO Properties and REO Account Properties
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties
SECTION 3.19. Additional Obligations of the Servicer and the Special Servicer;
Inspections
SECTION 3.20. Authenticating Agent
SECTION 3.21. Appointment of Custodians
SECTION 3.22. Reports to the Securities and Exchange Commission; Available
Information
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and
Reserve Accounts
SECTION 3.24. Property Advances
SECTION 3.25. Appointment of Special Servicer
SECTION 3.26. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping
SECTION 3.27. Interest Reserve Account
SECTION 3.28. Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Mortgage Loans
SECTION 3.29. Residual Trigger Date
SECTION 3.30. Modification, Waiver, Amendment and Consents
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher
SECTION 4.03. Compliance with Withholding Requirements
SECTION 4.04. REMIC Compliance
SECTION 4.05. Imposition of Tax on the Trust Fund
SECTION 4.06. Remittances; P&I Advances
SECTION 4.07. Grantor Trust Reporting
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration, Transfer and Exchange of Certificates
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.04. Appointment of Paying Agent
SECTION 5.05. Access to Certificateholders' Names and Addresses
SECTION 5.06. Actions of Certificateholders
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special Servicer
SECTION 6.02. Merger or Consolidation of the Servicer
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and Others
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the Special Servicer
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Other Remedies of Trustee
SECTION 7.05. Waiver of Past Events of Default; Termination
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or Mortgage
Loans
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee and Fiscal Agent
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent
ARTICLE IX
TERMINATION
SECTION 9.01. Termination
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts
SECTION 10.02. Limitation on Rights of Certificateholders
SECTION 10.03. Governing Law
SECTION 10.04. Notices
SECTION 10.05. Severability of Provisions
SECTION 10.06. Notice to the Depositor and Each Rating Agency
SECTION 10.07. Amendment
SECTION 10.08. Confirmation of Intent
SECTION 10.09. Streit Act
SECTION 10.10. No Intended Third-Party Beneficiaries
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1A Certificate
Exhibit A-2 Form of Class A-1B Certificate
Exhibit A-3 Form of Class A-1C Certificate
Exhibit A-4 Form of Class A-CS1 Certificate
Exhibit A-5 Form of Class A-CS2 Certificate
Exhibit A-6 Form of Class A-1D Certificate
Exhibit A-7 Form of Class A-2 Certificate
Exhibit A-8 Form of Class A-3 Certificate
Exhibit A-9 Form of Class A-4 Certificate
Exhibit A-10 Form of Class A-5 Certificate
Exhibit A-11 Form of Class B-1 Certificate
Exhibit A-12 Form of Class B-2 Certificate
Exhibit A-13 Form of Class B-3 Certificate
Exhibit A-14 Form of Class B-4 Certificate
Exhibit A-15 Form of Class B-4H Certificate
Exhibit A-16 Form of Class V-1 Certificate
Exhibit A-17 Form of Class V-2 Certificate
Exhibit A-18 Form of Class R Certificate
Exhibit A-19 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Form of Custodial Agreement
Exhibit G Form of Regulation S Transfer Certificate
Exhibit H Securities Legend
Exhibit I Form of Mortgage Loan Purchase and Sale Agreement
Exhibit J Form of Collateral Summary
Exhibit K Form of Transfer Certificate for Rule 144A Global Certificate to
Regulation S Global Certificate during Restricted Period
Exhibit L Form of Transfer Certificate for Rule 144A Global Certificate to
Regulation S Global Certificate after Restricted Period
Exhibit M Form of Transfer Certificate of Regulation S Global Certificate
to Rule 144A Global Certificate during Restricted Period
Exhibit N Schedule of Replacement Reserve Amounts
<PAGE>
Pooling and Servicing Agreement, dated as of October 1, 1996, among Asset
Securitization Corporation, as Depositor, AMRESCO Management, Inc., as Servicer,
CRIIMI MAE Services Limited Partnership, as Special Servicer, LaSalle National
Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have the
meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Lock-Box Accounts, Cash Collateral Accounts, Reserve Accounts,
the Default Interest, the Default Interest Distribution Account, the Excess
Interest and the Excess Interest Distribution Account (such portion of the Trust
Fund, the "Trust REMICs"), be treated for federal income tax purposes as two
separate real estate mortgage investment conduits (each, a "REMIC" or, in the
alternative, the "Lower-Tier REMIC" and the "Upper-Tier REMIC," respectively).
The Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-CS2, Class A-1D,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-4H Certificates constitute "regular interests" in the
Upper-Tier REMIC and the Class R Certificates constitute the sole Class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Class LR Certificates constitute the sole Class of "residual
interests" in the Lower-Tier REMIC for purposes of the REMIC Provisions. There
are also thirteen Classes of uncertificated Lower-Tier Regular Interests issued
under this Agreement (the Class A-1A-L, Class A-1B-L, Class A-1C-L, Class
A-1D-L, Class A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class B-1-L, Class
B-2-L, Class B-3-L, Class B-4-L and Class B-4H-L Interests), each of which will
constitute a regular interest in the Lower-Tier REMIC. All such Lower-Tier
Regular Interests will be held by the Trustee as assets of the Upper-Tier REMIC.
The parties intend that the portions of the Trust Fund representing the Default
Interest, the Default Interest Distribution Account, the Excess Interest and the
Excess Interest Distribution Account will be treated as a grantor trust under
Subpart E of Part 1 of Subchapter J of the Code, that the Class V-1 Certificates
represent pro rata undivided beneficial interests in the portion of the Trust
Fund consisting of the Default Interest and the Default Interest Distribution
Account and that the Class V-2 Certificates represent pro rata undivided
beneficial interests in the portion of the Trust Fund consisting of the Excess
Interest and the Excess Interest Distribution Account.
The following table sets forth the designation and aggregate initial
Certificate Balance (or, with respect to the Class A-CS1 and Class A-CS2
Certificates, Notional Balance) for each Class of Certificates comprising
interests in the Upper-Tier REMIC.
Class Certificate Balance or Notional Balance
Class A-1A $64,985,025.00
Class A-1B 154,000,000.00
Class A-1C 321,000,000.00
Class A-CS1(1) 64,985,025.00
Class A-CS2(2) 623,691,525.00
Class A-1D 19,564,674.00
Class A-2 39,129,349.00
Class A-3 35,216,414.00
Class A-4 39,129,349.00
Class A-5 15,651,739.00
Class B-1 43,042,284.00
Class B-2 27,390,544.00
Class B-3 7,825,869.00
Class B-4 15,650,746.00
Class B-4H 1,000.80
(1) The Class A-CS1 Certificates are composed of one Strip Component: the Class
A-1A Strip Component. The Class A-1A Strip Component has an initial Component
Balance of $64,985,025.00 which is equal to the initial Certificate Balance of
the Class A-1 Certificates.
(2) The Class A-CS2 Certificates are composed of seven Strip Components: the
Class A-1B Strip Component, the Class A-1C Strip Component, the Class A-1D Strip
Component, Class A-2 Strip Component, Class A-3 Strip Component, the Class A-4
Strip Component and the Class A-5 Strip Component. The Class A-1B Strip
Component has an initial Component Balance of $154,000,000.00, which is equal to
the initial Certificate Balance of the Class A-1B Certificates. The Class A-1C
Strip Component has an initial Component Balance of $321,000,000.00, which is
equal to the initial Certificate Balance of the Class A-1C Certificates. The
Class A-1D Strip Component has an initial Component Balance of $19,564,674.00,
which is equal to the Certificate Balance of the Class A-1D Certificates. The
Class A-2 Strip Component has an initial Component Balance of $39,129,349.00,
which is equal to the initial Certificate Balance of the Class A-2 Certificates.
The Class A-3 Strip Component has an initial Component Balance of
$35,216,414.00, which is equal to the initial Certificate Balance of the Class
A-3 Certificates. The Class A-4 Strip Component has an initial Component Balance
of $39,129,349.00, which is equal to the initial Certificate Balance of the
Class A-4 Certificates. The Class A-5 Strip Component has an initial Component
Balance of $15,651,739, which is equal to the initial Certificate Balance of the
Class A-5 Certificates.
The initial Certificate Balance of each of the Class V-1, Class V-2, Class
R and Class LR Certificates is zero. Additionally, the Class V-1, Class V-2,
Class R and Class LR Certificates do not have a Notional Balance. The
Certificate Balance of any Class of Certificates outstanding at any time
represents the maximum amount which holders thereof are entitled to receive as
distributions allocable to principal from the cash flow on the Mortgage Loans
and the other assets in the Trust Fund; provided, however, that in the event
that amounts previously allocated as Realized Losses to a Class of Certificates
in reduction of the Certificate Balance thereof are recovered subsequent to the
reduction of the Certificate Balance of such Class to zero, such Class may
receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $782,586,993.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer, the Special Servicer, the Trustee and the Fiscal Agent agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"Additional Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Additional Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan as of the Due Date (after giving effect
to all payments of principal on such Mortgage Loan on such Due Date) in the
month preceding the month in which such Distribution Date occurs.
"Additional Servicing Fee Rate": A rate equal to 0.04% per annum.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, have not been
reimbursed and Servicing Fees, Trustee Fees or Special Servicing Compensation
for which the Servicer, the Trustee or the Special Servicer, as applicable, has
not been timely paid or reimbursed for the number of days from the date on which
such Advance was made or such Servicing Fees, Trustee Fees or Special Servicing
Compensation were due through the date of payment or reimbursement of the
related Advance or other such amount, less any amount of interest previously
paid on such Advance or Servicing Fees, Trustee Fees or Special Servicing
Compensation; provided, that, with respect to a P&I Advance, in the event that
the related Borrower makes payment of the amount in respect of which such P&I
Advance was made with interest at the Default Rate, the Advance Interest Amount
payable to the Servicer, the Trustee or the Fiscal Agent shall be paid (i) first
from the amount of Default Interest paid by the Borrower and (ii) to the extent
such amounts are insufficient therefor, from amounts on deposit in the
Collection Account.
"Advance Rate": A per annum rate equal to the sum of (i) the Prime Rate (as
most recently published in the "Money Rates" section of The Wall Street Journal,
New York edition, on or before the related Record Date) plus (ii) 1%, compounded
monthly as of each Servicer Remittance Date. Interest at the Advance Rate will
accrue from (and including) the date on which the related Advance is made or the
related expense incurred to (but excluding) the first Servicer Remittance Date
after the date on which such amounts are recovered out of amounts received on
the Mortgage Loan as to which such Advances were made or servicing expenses
incurred or the first Servicer Remittance Date after a determination of
non-recoverability, as the case may be, is made, provided that such interest at
the Advance Rate will continue to accrue to the extent funds are not available
in the Collection Account for such reimbursement of such Advance.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officers' Certificate of the Servicer, the Special Servicer, or
the Depositor to determine whether any Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency) involved in
the organization or operation of the Depositor or an affiliate, as defined in
Rule 405 of the Act, of such Person.
"Agent Member": Members of, or participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property, the
portion of the principal amount of the related Mortgage Loan allocated to such
Mortgaged Property in the applicable Mortgage or Loan Agreement.
"Anchorage Loan": The mortgage loan secured by the property identified as
the Anchorage Shopping Center on the Mortgage Loan Schedule.
"Anchorage Participation": The loan participation interest in the Anchorage
Loan retained by the Depositor pursuant to the Anchorage Participation Agreement
and conveyed to the Trust Fund hereunder.
"Anchorage Participation Agreement": That certain Participation Agreement,
dated as of the Closing Date between the Depositor, as Lead Lender, and the
Mortgage Loan Seller, as Participant.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required be Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate, the
date upon which such Mortgage Loan commences accruing interest at such Revised
Rate.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the sum of the appraised values
of the Mortgaged Properties as determined by Updated Appraisals obtained by the
Servicer of the Mortgaged Properties securing such Mortgage Loan over (ii) the
sum of (A) to the extent not previously advanced by the Servicer, the Trustee or
the Fiscal Agent, all unpaid interest on such Mortgage Loan at a per annum rate
equal to its Mortgage Rate, (B) all unreimbursed Advances, with interest thereon
at the Advance Rate, in respect of such Mortgage Loan and (C) all due and unpaid
real estate taxes, ground rents and assessments and insurance premiums and all
other amounts due and unpaid with respect to such Mortgage Loan (which taxes,
premiums and other amounts have not been the subject of an Advance by the
Servicer, the Trustee or the Fiscal Agent, as applicable). If no Updated
Appraisal has been obtained within the last 12 months prior to the first
Distribution Date on or after an Appraisal Reduction Event has occurred, the
Servicer shall estimate the value of the related Mortgaged Properties (the
"Servicer's Appraisal Estimate") and such estimate shall be used for purposes of
determining the Appraisal Reduction Amount for such Distribution Date. Within 30
days after the Servicer receives notice or is otherwise aware of the Appraisal
Reduction Event, the Servicer shall obtain an Updated Appraisal. On the first
Distribution Date occurring on or after the delivery of such appraisal, the
Servicer shall adjust the Appraisal Reduction Amount to take into account such
appraisal (regardless of whether the Updated Appraisal is higher or lower than
the Servicer's Appraisal Estimate). Each Appraisal Reduction Amount shall also
be adjusted to take into account any subsequent Updated Appraisal and annual
letter updates, as of the date of each such subsequent Updated Appraisal or
letter update.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 90 days after an uncured Delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
immediately after the date on which a reduction in the amount of Monthly
Payments on such Mortgage Loan, or a change in any other material economic term
of such Mortgage Loan (other than an extension of the Maturity Date), becomes
effective as a result of a modification of such Mortgage Loan by the Special
Servicer, (iv) immediately after a receiver has been appointed, (v) immediately
after a borrower declares bankruptcy, (vi) immediately after a Mortgage Loan
becomes an REO Mortgage Loan, (vii) upon a default in the payment of a Balloon
Payment and (viii) immediately upon the occurrence of an event for which a
Property Protection Advance would be required to be made by the Servicer or any
other event which, in the discretion of the Servicer and of which the Servicer
becomes aware in performing its obligations hereunder, in accordance with the
Servicing Standard, would materially and adversely impair the value of a
Mortgaged Property and security for the related Mortgage Loan. The Special
Servicer shall notify the Servicer promptly upon the occurrence of any of the
foregoing events.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian and
the Servicer shall be responsible for determining whether any assignment is
legally sufficient or in recordable form.
"Assumed Maturity Date": With respect to any Mortgage Loan that is not a
Balloon Loan, the maturity date of such Mortgage Loan. With respect to any
Balloon Loan, the date on which such Mortgage Loan would be deemed to mature in
accordance with its original amortization schedule absent its Balloon Payment.
"Assumed Scheduled Payment": With respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment (including any REO Mortgage Loan as
to which the Balloon Payment would have been past due), an amount equal to the
sum of (a) the principal portion of the Monthly Payment that would have been due
on such Mortgage Loan on the related Due Date (or portion thereof not received),
based on the constant Monthly Payment that would have been due on such Mortgage
Loan on the related Due Date based on the constant payment required by the
related Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Servicer or Special Servicer
in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all previously
undistributed Monthly Payments, Minimum Defaulted Monthly Payments or other
receipts on account of principal and interest (including Unscheduled Payments
and any REO Proceeds transferred from an REO Account pursuant to Section
3.17(b)) on or in respect of the Mortgage Loans, received by the Servicer in the
Collection Period relating to such Distribution Date, (ii) all other amounts
received by the Servicer in such Collection Period and required to be placed in
the Collection Account by the Servicer pursuant to Section 3.05 allocable to
such Mortgage Loans, and including all P&I Advances made by the Servicer, the
Trustee or the Fiscal Agent in respect of such Distribution Date, (iii) for the
Distribution Date occurring in each March, the Withheld Amounts remitted to the
Distribution Account pursuant to Section 3.27(b), (iv) any late payments of
Monthly Payments received after the end of the Collection Period relating to
such Distribution Date but prior to the related Servicer Remittance Date and (v)
any Servicer Prepayment Interest Shortfalls, but excluding the following:
(a) amounts permitted to be used to reimburse the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent for previously unreimbursed
Advances (including Subordinate Class Advance Amounts applied in
reimbursement for the P&I Advance, if any, with respect to such
Distribution Date in accordance with Section 4.06(d) hereof) and
interest thereon as described in Section 3.06(ii) and (iii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee, Additional Servicing Fee and Trustee Fee and
an amount representing any applicable Special Servicing Compensation,
including interest thereon at the Advance Rate as provided in this
Agreement;
(c) all amounts in the nature of late fees, loan modification fees,
extension fees, loan service transaction fees, demand fees,
beneficiary statement charges, Assumption Fees and similar fees, which
the Servicer or Special Servicer is entitled to retain as Servicing
Compensation or Special Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance Proceeds
with respect to a Mortgage Loan which represents any unpaid Servicing
Fee, Trustee Fee and Special Servicing Compensation, including
interest thereon at the Advance Rate as provided in this Agreement, to
which the Servicer, Trustee and the Special Servicer, respectively,
are entitled;
(f) all amounts representing certain expenses reimbursable to the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent and
other amounts permitted to be retained by the Servicer or withdrawn by
the Servicer from the Collection Account to the extent expressly set
forth in this Agreement (including, without limitation, as provided in
Section 3.06), including interest thereon as provided in this
Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Upper-Tier Distribution Account, the
Distribution Account, the Default Interest Distribution Account, the
Excess Interest Distribution Account, the Interest Reserve Account,
any Cash Collateral Account, any Lock-Box Account, any Reserve Account
or any REO Account or in Permitted Investments in which such funds may
be invested;
(h) with respect to the Interest Reserve Loan and any Distribution Date
relating to each Interest Accrual Period occurring in each January or
any December occurring in a year immediately preceding a year which is
not a leap year, an amount equal to one day of interest on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the
month preceding the month in which such Distribution Date occurs at
the related Mortgage Rate to the extent such amounts are to be
deposited in the Interest Reserve Account and held for future
distribution pursuant to Section 3.27;
(i) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased pursuant to Sections 2.03(d), 2.03(e), 3.18
or 9.01(c) during the related Collection Period and subsequent to the
date as of which the amount required to effect such purchase or
repurchase was determined;
(j) the amount reasonably determined by the Trustee to be necessary to pay
any applicable federal, state or local taxes imposed on the Upper-Tier
REMIC or the Lower-Tier REMIC under the circumstances and to the
extent described in Section 4.05;
(k) Prepayment Premiums;
(l) Default Interest;
(m) Excess Interest;
(n) Any amounts distributed on any Special Distribution Date; and
(o) Any Subordinate Class Advance Recoveries.
"Balloon Loan": Any Mortgage Loan that requires a payment of principal on
the maturity date in excess of its constant Monthly Payment.
"Balloon Payment": With respect to each Mortgage Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Beneficial Owner": With respect to a Global Certificate, the Person who is
the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository). Each
of the Trustee and the Servicer shall have the right to require, as a condition
to acknowledging the status of any Person as a Beneficial Owner under this
Agreement, that such Person provide evidence at its expense of its status as a
Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors on
any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day on which
banking institutions in the City of New York, New York, the City of Chicago,
Illinois, the State of Georgia or the State of Texas are authorized or obligated
by law, executive order or governmental decree to be closed.
"Cash Collateral Account": With respect to any Mortgage Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document into which the Lock-Box Account monies are swept on a regular basis for
the benefit of the Trustee as successor to the Mortgage Loan Seller. Any Cash
Collateral Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive all reinvestment income or gain thereon
in accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon. The Servicer shall be permitted to make withdrawals therefrom for
deposit into the Collection Account. To the extent not inconsistent with the
terms of the related Mortgage Loan, each such Cash Collateral Account shall be
an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan, the
cash collateral account agreement, if any, between the Originator and the
related Borrower, pursuant to which the related Cash Collateral Account, if any,
may have been established.
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the Mortgage Loan Seller in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-off Date.
"CEDEL": Citibank, N.A., as depositary for Centrale de Livraison de Valeurs
Mobilieres, S.A., or its successor in such capacity.
"Certificate": Any Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class
A-CS2, Class A-1D, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R or Class LR
Certificate issued, authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates or
Lower-Tier Regular Interests (other than the Class A-CS1, Class A-CS2, Class
V-1, Class V-2, Class R and Class LR Certificates and the Related Lower-Tier
Regular Interests) (a) on or prior to the first Distribution Date, an amount
equal to the aggregate initial Certificate Balance of such Class, as specified
in the Preliminary Statement hereto, (b) as of any date of determination after
the first Distribution Date, the Certificate Balance of such Class of
Certificates or Lower-Tier Regular Interests on the Distribution Date
immediately prior to such date of determination after application of the
distributions and Realized Losses allocable to principal made thereon on such
prior Distribution Date (unless a Special Distribution Date has occurred between
such prior Distribution Date and the date of determination) and (c) if a Special
Distribution Date has occurred between the date of determination and the
preceding Distribution Date, the Certificate Balance of such Class of
Certificates or Lower-Tier Regular Interests as of the last day of the Interest
Accrual Period in which such Special Distribution Date occurs, after application
of the distributions and Realized Losses allocable to principal made thereon on
the prior Distribution Date and application of distributions allocable to
principal on such Special Distribution Date. With respect to any Class of
Lower-Tier Regular Interests, the Certificate Balance thereof shall, in any
event, be equal to the Certificate Balance of the Related Certificates.
"Certificate Custodian": Initially, LaSalle National Trust, N.A.;
thereafter any other Certificate Custodian acceptable to the Depository and
selected by the Trustee.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the Certificate
Register subject to the following:
(i) except as provided in clause (ii), for the purpose of giving any
consent or taking any action pursuant to this Agreement, any Certificate
beneficially owned by the Depositor, the Servicer, the Special Servicer, the
Trustee, a Manager or a Borrower or any Person known to a Responsible Officer of
the Certificate Registrar to be an Affiliate of any thereof shall be deemed not
to be outstanding and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent or take any such action has been
obtained;
(ii) for purposes of obtaining the consent of Certificateholders to an
amendment of the Pooling and Servicing Agreement, any Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, unless such amendment relates to compensation of the
Servicer or the Special Servicer or benefits the Servicer or the Special
Servicer (in its capacity as such) or any Affiliate thereof (other than solely
in its capacity as Certificateholder) in any material respect, in which case
such Certificates shall be deemed not to be outstanding;
(iii) except as provided in clause (iv) below, for purposes of obtaining
the consent of Certificateholders to any action proposed to be taken by the
Special Servicer with respect to a Mortgage Loan, any Certificates beneficially
owned by the Special Servicer or an Affiliate thereof shall be deemed not to be
outstanding;
(iv) for purposes of Section 3.30 (for purposes of determining who the
Directing Holders are), Certificates owned by the Special Servicer or an
Affiliate shall be deemed to be outstanding; and
(v) for purposes of providing or distributing any reports, statements or
other information required or permitted to be provided to a Certificateholder
hereunder, a Certificateholder shall include any Beneficial Owner, or any Person
identified by a Beneficial Owner as a prospective transferee of a Certificate
beneficially owned by such Beneficial Owner, but only if the Trustee or another
party hereto furnishing such report, statement or information has been provided
with the name of the Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes of the foregoing,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Fiscal Agent or other such Person may rely, without limitation, on a
participant listing from the Depository or statements furnished by a Person that
on their face appear to be statements from a participant in the Depository to
such Person indicating that such Person beneficially owns Certificates.
"Class": With respect to the Certificates or Lower-Tier Regular Interests,
all of the Certificates or Lower-Tier Regular Interests bearing the same
alphabetical and numerical Class designation.
"Class A-1A Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1A Pass-Through Rate": A per annum rate equal to 7.01000%.
"Class A-1A Strip Component": The Strip Component of the Class ACS-1
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-1A Certificates and bearing interest at the
Class A-1A Strip Pass-Through Rate.
"Class A-1A Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 7.01000%. Interest at the
Class A-1A Strip Pass-Through Rate on the Certificate Balance of the Class
A-1A-L Interest represents a "specified portion" of the interest payments on the
Class A-1A-L Interest.
"Class A-1A-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-1B Pass-Through Rate": A per annum rate equal to 7.21000%.
"Class A-1B Strip Component": A Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-1B Certificates and bearing interest at the
Class A-1B Strip Pass-Through Rate.
"Class A-1B Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 7.21000%. Interest at the
Class A-1B Strip Pass-Through Rate on the Certificate Balance of the Class
A-1B-L Interest represents a "specified portion" of the interest payments on the
Class A-1B-L Interest.
"Class A-1B-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-1C Pass-Through Rate": A per annum rate equal to 7.40000%.
"Class A-1C Strip Component": A Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-1C Certificates and bearing interest at the
Class A-1C Strip Pass-Through Rate.
"Class A-1C Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 7.40000%. Interest at the
Class A-1C Strip Pass-Through Rate on the Certificate Balance of the Class
A-1C-L Interest represents a "specified portion" of the interest payments on the
Class A-1C-L Interest.
"Class A-1C-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class A-1D Pass-Through Rate": A per annum rate equal to 7.47000%.
"Class A-1D Strip Component": A Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-1D Certificates and bearing interest at the
Class A-1D Strip Pass-Through Rate.
"Class A-1D Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 7.47000%. Interest at the
Class A-1D Strip Pass-Through Rate on the Certificate Balance of the Class
A-1D-L Interest represents a "specified portion" of the interest payments on the
Class A-1D-L Interest.
"Class A-1D-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.69827%.
"Class A-2 Strip Component": The Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-2 Certificates and bearing interest at the
Class A-2 Strip Pass-Through Rate.
"Class A-2 Strip Pass-Through Rate": A per annum rate equal to 1.69827%.
Interest at the Class A-2 Strip Pass-Through Rate on the Certificate Balance of
the Class A-2-L Interest represents a "specified portion" of the interest
payments on the Class A-2-L Interest.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.59927%.
"Class A-3 Strip Component": The Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-3 Certificates and bearing interest at the
Class A-3 Strip Pass-Through Rate.
"Class A-3 Strip Pass-Through Rate": A per annum rate equal to 1.59927%.
Interest at the Class A-3 Strip Pass-Through Rate on the Certificate Balance of
the Class A-3-L Interest represents a "specified portion" of the interest
payments on the Class A-3-L Interest.
"Class A-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.30327%.
"Class A-4 Strip Component": The Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-4 Certificates and bearing interest at the
Class A-4 Strip Pass-Through Rate.
"Class A-4 Strip Pass-Through Rate": A per annum rate equal to 1.30327%.
Interest at the Class A-4 Strip Pass-Through Rate on the Certificate Balance of
the Class A-4-L Interest represents a "specified portion" of the interest
payments on the Class A-4-L Interest.
"Class A-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class A-5 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.96027%.
"Class A-5 Strip Component": The Strip Component of the Class A-CS2
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-5 Certificates and bearing interest at the
Class A-5 Strip Pass-Through Rate.
"Class A-5 Strip Pass-Through Rate": A per annum rate equal to 0.96027%.
Interest at the Class A-5 Strip Pass-Through Rate on the Certificate Balance of
the Class A-5-L Interest represents a "specified portion" of the interest
payments on the Class A-5-L Interest.
"Class A-5-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class B-1-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-1-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class A-CS1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto. The Class
A-CS1 Certificates are comprised entirely of the Class A-1A Strip Component.
"Class A-CS1 Pass-Through Rate": A per annum rate equal to the Class A-1A
Strip Pass-Through Rate.
"Class A-CS2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto. The Class
A-CS2 Certificates are comprised entirely of the Class A-1B Strip Component,
Class A-1C Strip Component, Class A-1D Strip Component, Class A-2 Strip
Component, Class A-3 Strip Component, Class A-4 Strip Component and Class A-5
Strip Component.
"Class A-CS2 Pass Through Rate": A per annum rate equal to the weighted
average of the Class A-1B Strip Pass-Through Rate, Class A-1C Strip Pass-Through
Rate, Class A-1D Strip Pass-Through Rate, Class A-2 Strip Pass-Through Rate,
Class A-3 Strip Pass-Through Rate, the Class A-4 Strip Pass-Through Rate and the
Class A-5 Strip Pass-Through Rate (weighted on the basis of the respective
Component Balances without giving effect to Appraisal Reduction Amounts and
Delinquency Reduction Amounts).
"Class B-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class B-2 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class B-3 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class B-4 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-4H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class B-4H Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-4H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Distribution Amount": With respect to any Distribution Date
and the Class of Certificates other than the Class A-CS1 and Class A-CS2
Certificates, an amount equal to the Interest Accrual Amount thereof; with
respect to any Distribution Date and the Class A-CS1 and Class A-CS2
Certificates, an amount equal to the sum of the Interest Accrual Amounts of the
related Strip Components of each such Class.
"Class Interest Shortfall": On any Distribution Date for any Class and/or
Strip Component of such Class, as applicable, of Certificates, the amount of
interest (other than Net Default Interest, Excess Interest, Reduction Interest
Distribution Amounts or Reduction Interest Shortfalls) required to be
distributed to the Holders of such Class and/or in respect of such Strip
Component pursuant to Section 4.01(b) on such Distribution Date minus the amount
of interest (other than Net Default Interest, Excess Interest, Reduction
Interest Distribution Amounts or Reduction Interest Shortfalls) actually
distributed to such Holders pursuant to such Section, if any.
"Class LR Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent on behalf of the Depositor in substantially
the form set forth in Exhibit A-18 hereto. The Class LR Certificates have no
Pass-Through Rate, Certificate Balance or Notional Balance.
"Class R Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent on behalf of the Depositor in substantially
the form set forth in Exhibit A-19 hereto. The Class R Certificates have no
Pass-Through Rate, Certificate Balance or Notional Balance.
"Class V-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto. The Class
V-1 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class V-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibits A-17 hereto. The Class
V-2 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Closing Date": October 22, 1996.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Collateral Account": As defined in Section 3.30(e). The Collateral Account
shall be maintained as an Eligible Account.
"Collection Account": The trust account or accounts created and maintained
by the Servicer pursuant to Section 3.05(a), which shall be entitled "AMRESCO
Management, Inc. in trust for LaSalle National Bank, as Trustee, in trust for
Holders of Asset Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1996-D3, Collection Account" and which must be an Eligible
Account.
"Collection Period": With respect to a Distribution Date, the period
beginning on the day after the Due Date, in the month preceding the month in
which such Distribution Date occurs (or, in the case of the Distribution Date
occurring in November 1996, on the day after the Cut-off Date) and ending at the
close of business on the Due Date, in the month in which such Distribution Date
occurs.
"Commission": The Securities and Exchange Commission.
"Component Balance": In the case of the Class A-1A-L, Class A-1B-L, Class
A-1C-L, Class A-1D-L, Class A-2-L, Class A-3-L, Class A-4-L and Class A-5-L
Interests, the Component Balance of the Class A-1A, Class A-1B, Class A-1C,
Class A-1D, Class A-2, Class A-3, Class A-4 and Class A-5 Strip Components,
respectively. With respect to the Strip Components as of any date of
determination after the first Distribution Date, the Component Balance of each
Strip Component (other than the Class A-1A Strip Component, Class A-1B Strip
Component and Class A-1C Strip Component) on the Distribution Date immediately
prior to such date of determination, after application of reductions and
increases thereto as a result of (i) distributions allocable to principal and
Realized Losses allocated in reduction of the Certificate Balance of the Related
Certificates on such prior Distribution Date, (ii) the allocation to such Strip
Component of Appraisal Reduction Amounts (or reversals thereof) and Delinquency
Reduction Amounts and (iii) if such date of determination occurs on or after any
Special Distribution Date, the distribution of Malibu Principal in reduction of
the Certificate Balance of the Related Certificates on such Special Distribution
Date. The initial Component Balance of the Class A-1A Strip Component will be
(i) reduced on any Distribution Date by the amount of the Principal Distribution
Amount distributed to the Class A-1A Certificates in respect of the Class A-1A-L
Interest on such Distribution Date, (ii) reduced on any Distribution Date by any
Realized Losses allocable to the Class A-1A Certificates in respect of the Class
A-1A-L Interest on such Distribution Date (which allocation shall be pro rata
with the Class A-1B-L Interest and Class A-1C-L Interest) and (iii) reduced on
any Special Distribution Date by the amount of Malibu Principal distributed to
the Class A-1A Certificates in respect of the Class A-1A-L Interest on such
Special Distribution Date, in each case until the Component Balance of the Class
A-1A Strip Component has been reduced to zero. The initial Component Balance of
the Class A-1B Strip Component will be (i) reduced on any Distribution Date by
the portion of the Principal Distribution Amount distributable to the Class A-1B
Certificates on such Distribution Date in respect of the Class A-1B-L Interest,
(ii) reduced on any Distribution Date by any Realized Losses allocable to the
Class A-1B Certificates in respect of the Class A-1B-L Interest on such
Distribution Date (which allocation shall be pro rata with the Class A-1A-L
Interest, to the extent such interest is outstanding on such Distribution Date,
and Class A-1C-L Interest) and (iii) reduced on any Special Distribution Date by
the amount of Malibu Principal distributed to the Class A-1B Certificates in
respect of the Class A-1B-L Interest on such Special Distribution Date, until
the Component Balance of the Class A-1B Strip Component has been reduced to
zero. The initial Component Balance of the Class A-1C Strip Component will be
(i) reduced on any Distribution Date by the amount of the Principal Distribution
Amount distributed to the Class A-1C Certificates in respect of the Class A-1C-L
Interest on such Distribution Date, (ii) reduced on any Distribution Date by any
Realized Losses allocable to the Class A-1C Certificates in respect of the Class
A-1C-L interest on such Distribution Date (which allocation shall be pro rata
with the Class A-1A-L Interest and Class A-1B-L Interest to the extent each such
interest is outstanding on such Distribution Date) and (iii) reduced on any
Special Distribution Date by the amount of Malibu Principal distributed to the
Class A-1C Certificates in respect of the Class A-1C-L Interest on such Special
Distribution Date until the Component Balance of the Class A-1C Strip Component
has been reduced to zero.
"Corporate Trust Office": The principal office of the Trustee located at
135 South LaSalle Street, Suite 1740, Chicago, Illinois 60603 or the principal
trust office of any successor trustee qualified and appointed pursuant to
Section 8.08.
"Cross-over Date": means the Distribution Date on which the Certificate
Balance of each Class of Certificates other than the Class A-1A, Class A-1B and
Class A-1C Certificates have been reduced to zero.
"Custodial Agreement": The Custodial Agreement, if any, from time to time
in effect between the Custodian named therein and the Trustee, substantially in
the form of Exhibit F hereto, as the same may be amended or modified from time
to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and, unless
the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or the Servicer or any Affiliate of
the Trustee or the Servicer, but may not be the Depositor or any Affiliate
thereof.
"Cut-off Date": October 22, 1996.
"DCR": Duff & Phelps Credit Rating Co., or its successor in interest.
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of the Default Rate over the Mortgage Rate
(plus the Excess Rate to the extent required by the applicable Mortgage Loan).
The Default Interest shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Default Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(d), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-D3, Default Interest
Distribution Account" and which must be an Eligible Account. The Default
Interest Distribution Account shall not be an asset of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment or a
Balloon Payment, as such rate is set forth on the Mortgage Loan Schedule.
"Delinquency": Any failure of a Borrower to make a scheduled payment on a
Due Date.
"Delinquency Reduction Amount": In connection with a Delinquency, an amount
equal to the scheduled payment due on the related Due Date (adjusted to the
applicable Net Mortgage Pass-Through Rate with respect to the interest portion)
and not received from a Borrower under any Mortgage Loan.
"Denomination": As defined in Section 5.01(a).
"Depositor": Asset Securitization Corporation, a Delaware corporation, and
its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed by the
Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Directing Holders": As defined in Section 3.30(d).
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space for occupancy only within the
meaning of Treasury Regulations Section 1.512(h)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, any use of such
REO Property in a trade or business conducted by the Trust Fund, or the
performing of any construction work on the REO Property other than through an
Independent Contractor; provided, however, that the Special Servicer, on behalf
of the Trust Fund, shall not be considered to Directly Operate an REO Property
solely because the Special Servicer, on behalf of the Trust Fund, establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, makes decisions as to repairs or capital expenditures with
respect to such REO Property or takes other actions consistent with Section
1.856-4(b)(5)(ii) of the regulations of the United States Department of the
Treasury.
"Discount Rate": With respect to any Class of Certificates, the rate
determined by the Trustee, in its good faith, to be the rate (interpolated and
rounded to the nearest one-thousandth of a percent, if necessary) in the
secondary market for United States Treasury securities with a maturity equal to
the then computed weighted average life (or in the case of the Class A-CS1 and
Class A-CS2 Certificates, the weighted average life of the interest payments) of
such Class (rounded to the nearest month), without taking into account the
related prepayment of principal.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3, Distribution Account" and which must
be an Eligible Account.
"Distribution Date": The 13th day of each month, or if such 13th day is not
a Business Day, the Business Day immediately following such 13th day, commencing
in November 1996; provided, however, that in any month, the Distribution Date
will be no earlier than the second Business Day following the 11th day of such
month; provided, further, that if the 11th day of any month is not a Business
Day, the Distribution Date will be the third Business Day following the 11th day
of such month.
"Due Date": With respect to any Distribution Date and/or any Mortgage Loan,
as the case may be, the 11th day of the month (or in the case of certain of the
Mortgage Loans, if the 11th day is not a business day, as defined in the related
Loan Documents, either the next business day or the first preceding business
day) in which such Distribution Date occurs.
"Early Termination Notice Date": Any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eligible Account": Either (i) (A) an account or accounts maintained with a
depository institution or trust company the long term unsecured debt obligations
or commercial paper of which are rated by each of the Rating Agencies in its
highest rating category at all times (or, in the case of the Collection Account,
Interest Reserve Account and Escrow Accounts, the long term unsecured debt
obligations of which are rated at least "AA" by Fitch and DCR and "Aa2" by
Moody's) or (B) as to which the Trustee has received written confirmation from
each of the Rating Agencies that holding funds in such account would not cause
any Rating Agency to requalify, withdraw or downgrade any of its ratings on the
Certificates or (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity which, in the case of a state chartered depository
institution or trust company is subject to regulations substantially similar to
12 C.F.R. ss. 9.10(b), having in either case a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal and
state authority, or otherwise acceptable (as evidenced by a written confirmation
from each Rating Agency that such account would not, in and of itself, cause a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates) to each Rating Agency, which may be an account maintained with
the Trustee or the Servicer. Eligible Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A, (ii) an Institutional Accredited Investor or (iii) a
Regulation S Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account may be
a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer pursuant
to the related Mortgage, Cash Collateral Agreement, Lock-Box Agreement or Loan
Agreement for the account of such Borrower for application toward the payment of
taxes, insurance premiums, assessments and similar items in respect of the
related Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer Event
of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised Rate, interest accrued on such
Mortgage Loan allocable to the Excess Rate. The Excess Interest shall not be an
asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(e), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-D3, Excess Interest Distribution
Account" and which must be an Eligible Account. The Excess Interest Distribution
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated on the
Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A Monthly Distribution Statement, Special Event
Report, Summary Report or Annual Compliance Report to be filed with the
Commission, under cover of the related form required by the Exchange Act.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHA": The Federal Housing Administration.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or Mortgage Loan subject to repurchase by the Depositor or the
Mortgage Loan Seller pursuant to Sections 2.03(d) or 2.03(e), the recovery of
all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and
other payments or recoveries (including proceeds of the final sale of any REO
Property) which the Servicer (or in the case of a Specially Serviced Mortgage
Loan, the Special Servicer), in its reasonable judgment as evidenced by a
certificate of a Servicing Officer delivered to the Trustee and the Custodian
(and the Servicer, if the Certificate is from the Special Servicer), expects to
be finally recoverable. The Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Servicer hereunder and the transfer of such records to a
successor servicer and (ii) five years following the termination of the Trust
Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fiscal Agent": ABN AMRO Bank N.V., in its capacity as fiscal agent of the
Trustee, or its successor in interest, or any successor fiscal agent appointed
as herein provided.
"Fitch": Fitch Investors Service, L.P., or its successor in interest.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Global Certificates": The Class A-1A, Class A-1B, Class A-1C, Class A-1D,
Class A-CS1, Class A-CS2, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnified Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Servicer,
the Special Servicer, any Borrower or Manager or any Affiliate thereof, and (ii)
is not connected with any such Person thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer nor the Special Servicer shall be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel (at the expense of the party seeking to be
deemed an Independent) addressed to the Servicer and the Trustee has been
delivered to the Trustee to that effect) or (ii) any other Person (including the
Servicer and the Special Servicer) if the Servicer, on behalf of itself and the
Trustee, has received an Opinion of Counsel (at the expense of the party seeking
to be deemed an Independent Contractor) to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D, or an entity in which all the
equity owners meet such requirements.
"Instructions": As defined in Section 3.30(d).
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Certificates (other than the Class A-CS1, Class A-CS2, Class V-1, Class
V-2, Class R and Class LR Certificates), an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Certificate Balance (provided, that for interest accrual purposes any
distributions in reduction of Certificate Balance on such Distribution Date or a
Special Distribution Date occurring in the related Interest Accrual Period or
reductions in Certificate Balance as a result of allocations of Realized Losses
on such Distribution Date will be deemed to have been made on the first day of
such Interest Accrual Period). With respect to any Distribution Date and each of
the Class A-1A, Class A-1B and the Class A-1C Strip Components, an amount equal
to interest for the related Interest Accrual Period at the Pass-Through Rate for
such Strip Component on the Component Balance of such Strip Component (provided,
that any reductions in Component Balances of the Class A-1A Strip Component,
Class A-1B Strip Component and Class A-1C Strip Component as a result of
distributions in reduction of the Certificate Balance of the Class A-1A, Class
A-1B and Class A-1C Certificates on such Distribution Date or a Special
Distribution Date occurring in the related Interest Accrual Period or
allocations of Realized Losses to the Certificate Balance of the Class A-1A,
Class A-1B and Class A-1C Certificates on such Distribution Date will be deemed
to have occurred on the first day of such Interest Accrual Period). With respect
to any Distribution Date and each of the Class A-1D, Class A-2, Class A-3, Class
A-4 and Class A-5 Strip Components, an amount equal to interest for the related
Interest Accrual Period at the Pass-Through Rate for such Strip Component for
such Interest Accrual Period on the Component Balance of such Strip Component
(provided, that, (i) any reductions in Component Balance as a result of (A)
distributions of principal to the related Class of Certificates on such
Distribution Date or a Special Distribution Date occurring in the related
Interest Accrual Period, (B) allocations of Realized Losses to the Certificate
Balance of the related Class of Certificates on such Distribution Date or (C)
allocations of Appraisal Reduction Amounts or Delinquency Reduction Amounts to
the Component Balance of the related Class of Certificates on such Distribution
Date and (ii) any increases in Component Balance as a result of reversals of
reductions resulting from Appraisal Reduction Events and Delinquencies on such
Distribution Date will be deemed to have occurred on the first day of such
Interest Accrual Period). With respect to any Lower-Tier Regular Interest and
any Distribution Date, an amount equal to interest for the related Interest
Accrual Period at the Lower-Tier Pass-Through Rate for such Interest Accrual
Period on the Certificate Balance of such Lower-Tier Regular Interest, provided
that, for such purpose, (i) any distributions in reduction of Certificate
Balance on such Distribution Date or a Special Distribution Date occurring in
the related Interest Accrual Period and (ii) reductions of Certificate Balance
as a result of allocations of Realized Losses on such Distribution Date shall be
deemed to have been made as of the first day of such Interest Accrual Period.
For any Distribution Date following a Special Distribution Date, the Interest
Accrual Amount of each Class of Certificates, Strip Components and Related
Regular-Tier Lower Interests shall be reduced by the amount, if any, of interest
distributed thereto on such Special Distribution Date. With respect to a Special
Distribution Date and any Class of Certificates (other than the Class A-CS1,
Class A-CS2, Class V-1, Class V-2, Class R and Class LR Certificates), an amount
of interest for the period commencing on the first day of the related Interest
Accrual Period through the date on which the related prepayment on the Malibu
Canyon Loan occurs, at (i) with respect to any Class that bears interest at a
fixed rate, the Pass-Through Rate for such Class or (ii) with respect to any
Class that bears interest at a variable rate, a rate per annum equal to the
Weighted Average Net Mortgage Pass-Through Rate for such Special Distribution
Date less, if applicable, the pass-through rate of the related Strip Component
on the amount of Malibu Principal distributed to such Class on such Special
Distribution Date. With respect to a Special Distribution Date and the Class
A-CS1 and Class A-CS2 Certificates, an amount of interest for the period
commencing on the first day the related Interest Accrual Period through the date
on which the related prepayment on the Malibu Canyon Loan occurs, at (i) with
respect to any Strip Component that bears interest at a fixed rate, the
Pass-Through Rate for such Strip Component or (ii) with respect to any Strip
Component that bears interest at a variable rate, a rate per annum equal to the
Weighted Average Net Mortgage Pass-Through Rate for such Special Distribution
Date less, the Pass-Through Rate of the Related Certificates on the amount of
Malibu Principal distributed to the Related Certificates on such Special
Distribution Date.
"Interest Accrual Period": With respect to any Distribution Date, the
period which commences on the eleventh day of the month preceding the month in
which such Distribution Date occurs and ends on the tenth day of the month in
which such Distribution Date occurs, provided that the Interest Accrual Period
with respect to the Distribution Date occurring in November 1996 shall be
assumed to consist of nineteen days. Interest for each Interest Accrual Period,
other than the Interest Accrual Period with respect to the Distribution Date
occurring in November 1996, is calculated based on a 360-day year consisting of
twelve 30-day months.
"Interest Reserve Account": The trust account created and maintained by the
Servicer pursuant to Section 3.27, which shall be entitled "AMRESCO Management,
Inc., in trust for LaSalle National Bank, as Trustee, in trust for Holders of
Asset Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1996-D3, Interest Reserve Account" and which must be an Eligible Account.
"Interest Reserve Loan": The Mortgage Loan identified as the Ambassador
Apartments loan on the Mortgage Loan Schedule.
"Interest Shortfall": On any Distribution Date for any Lower-Tier Regular
Interest, any shortfall in the amount of interest required to be distributed to
such Lower-Tier Regular Interest on the Certificate Balance or Component Balance
thereof, as the case may be, on such Distribution Date.
"Interested Person": As of any date of determination, the Depositor, the
Servicer, Special Servicer, the Trustee, the Fiscal Agent, any Borrower, any
manager of a Mortgaged Property, any Independent Contractor engaged by the
Special Servicer pursuant to Section 3.17, or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section 5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Liquidation Expenses": Expenses incurred by the Servicer, the Special
Servicer and the Trustee in connection with the liquidation of any Mortgage Loan
or property acquired in respect thereof (including, without limitation, legal
fees and expenses, committee or referee fees, and, if applicable, brokerage
commissions, and conveyance taxes) and any Property Protection Expenses incurred
with respect to such Mortgage Loan or such property including interest thereon
at the Advance Rate not previously reimbursed from collections or other proceeds
therefrom.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the taking of a Mortgaged Property (or portion thereof)
by exercise of the power of eminent domain or condemnation, (ii) the liquidation
of a Specially Serviced Mortgage Loan through a trustee's sale, foreclosure sale
or otherwise or (iii) a sale of a Mortgage Loan or an REO Property in accordance
with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the Originator and the Borrower, pursuant to which such Mortgage
Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents executed
or delivered in connection with the origination of such Mortgage Loan or
subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number by which
such Mortgage Loan was identified on the books and records of the Depositor or
any sub-servicer for the Depositor, as set forth in the Mortgage Loan Schedule.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage Loan to
receive income therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Accounts.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the Originator or the Mortgage Loan Seller and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lock-out Period" With respect to any Mortgage Loan, the period of time
specified in the related Loan Documents during which voluntary prepayments by
the related Borrower are prohibited.
"Lower Rate": As defined in the definition of Minimum Defaulted Monthly
Payment.
"Lower-Tier Pass-Through Rate": With respect to any Distribution Date and
any Class of Lower-Tier Regular Interests, a per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"Lower-Tier Regular Interests": The Class A-1A-L, Class A-1B-L, Class
A-1C-L, Class A-1D-L, Class A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class
B-1-L, Class B-2-L, Class B-3-L, Class B-4-L and Class B-4H-L Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Excess
Interest), collections thereon, any REO Property acquired in respect thereof and
amounts held from time to time in the Collection Account and the Distribution
Account.
"LTV": With respect to any Mortgage Loan and any date of determination, the
outstanding principal balance of such Mortgage Loan as of such date divided by
the appraised value of the Mortgaged Properties securing such Mortgage Loan as
evidenced by an Updated Appraisal obtained by the Servicer or an update thereto.
"MAI": Member of the Appraisal Institute.
"Malibu Principal": The principal component of any prepayment received on
the Mortgage Loan known as the Malibu Canyon Loan after the expiration of the
related Lock-out Period.
"Malibu Canyon Loan": The Mortgage Loan identified as the Malibu Canyon
loan on the Mortgage Loan Schedule.
"Management Agreement": With respect to any Mortgage Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager for the
related Mortgaged Properties.
"Maturity Date": With respect to each Mortgage Loan, the Maturity Date as
set forth on the Mortgage Loan Schedule.
"Minimum Defaulted Monthly Payment": With respect to any extension of a
Mortgage Loan that is delinquent in respect of its Balloon Payment, an amount
equal to (a) the principal portion of the Monthly Payment that would have been
due on such Mortgage Loan on the related Due Date based on the original
amortization schedule thereof, or, if there is no amortization schedule, the
principal portion of the constant Monthly Payment that would have been due (in
each case calculated with interest at the Mortgage Rate), assuming such Balloon
Payment had not become due, after giving effect to any modification, and (b)
interest at the applicable Default Rate; provided, however, that the Special
Servicer may, in its discretion, agree that the Minimum Defaulted Monthly
Payments may include interest at a rate lower than the related Default Rate (but
in no event lower than the related Mortgage Rate) (the "Lower Rate"); provided
that if, after notice to all Certificateholders, Holders of Certificates
evidencing at least 66-2/3% of the Voting Rights of each Class, (or, that in the
event that the Special Servicer is not the Servicer and the Servicer would not
agree to the Lower Rate, Certificateholders representing greater than (a) 50% of
the aggregate Voting Rights of all Certificateholders and (b) 66-2/3% of the
aggregate Voting Rights of all Certificateholders who respond to such notice
within 30 Business Days of the delivery of such notice), direct the Special
Servicer not to agree to permit payments to include interest at the Lower Rate,
the Special Servicer shall not agree to payments with interest at the Lower
Rate, provided, further, that, if the Minimum Defaulted Monthly Payment is to
include interest at the Lower Rate, the Special Servicer may agree that interest
on such Mortgage Loan accrues at the Lower Rate if, after notice to all
Certificateholders, holders of Certificates evidencing at least 66-2/3% of the
Voting Rights of each Class direct the Special Servicer that such Mortgage Loan
shall accrue interest at the related Default Rate, then such Mortgage Loan will
continue to accrue interest at the Default Rate thereof and the excess of
interest accrued on such Mortgage Loan over the amount included in the Minimum
Defaulted Monthly Payments (i.e., interest at the Lower Rate) shall be added to
the outstanding principal balance of such Mortgage Loan. Notwithstanding the
foregoing, if the Directing Holders have given Instructions to the Special
Servicer to extend, the Special Servicer shall be required to follow the
Directing Holders' Instructions with respect to interest so long as the Minimum
Defaulted Monthly Payment is at least equal to the Lower Rate.
"Monthly Distribution Statement": A monthly distribution statement prepared
by the Trustee pursuant to Section 4.02(a) hereof.
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal, if
any, and interest at the Mortgage Rate, excluding any Balloon Payment (but not
excluding any constant Monthly Payment), which is payable by the related
Borrower on such Due Date under the related Note. With respect to an REO
Mortgage Loan, the monthly payment that would otherwise have been payable on the
related Due Date had the related Note not been discharged, determined as set
forth in the preceding sentence and on the assumption that all other amounts, if
any, due thereunder are paid when due.
"Moody's": Moody's Investors Service, Inc., or its successor in interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage documents
listed in Section 2.01(i) through (xv) pertaining to such particular Mortgage
Loan and any additional documents required to be added to such Mortgage File
pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund,
the mortgage loans originally so transferred, assigned and held being identified
on the Mortgage Loan Schedule as of the Cut-off Date. Such term shall include
(i) any REO Mortgage Loan, Specially Serviced Mortgage Loan or any Mortgage Loan
that has been defeased in whole or in part and (ii) with respect to describing
the rights and obligations of the parties hereto, except as specified in Section
3.28(g), with respect to the Anchorage Participation and the Anchorage Loan, the
Anchorage Participation and the Anchorage Loan, provided, that nothing herein
shall be deemed to override the provisions of the Anchorage Participation
Agreement with respect to the rights of the Other Participant set forth therein.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan Purchase and
Sale Agreement dated as of the Cut-off Date, by and between the Depositor and
the Mortgage Loan Seller, a copy of which is attached hereto as Exhibit L.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the Trust
Fund as of the Closing Date being attached hereto as Exhibit B, which list shall
set forth the following information with respect to each Mortgage Loan:
(a) the Loan Number;
(b) the property name, city and state where each related Mortgaged Property
is located;
(c) the Monthly Payment in effect as of the Cut-off Date;
(d) the Mortgage Rate;
(e) the Maturity Date;
(f) the Stated Principal Balance as of the Cut-off Date and, as applicable,
the allocation of such balance to each related Mortgaged Property;
(g) the Originator of such Mortgage Loan; and
(h) whether the Mortgage Loan is an Actual/360 Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (f) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may also set forth, for selected Mortgage Loans, the net
operating income or debt service coverage ratio. The Mortgage Loan Schedule may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": Nomura Asset Capital Corporation, a Delaware
corporation, and its successors in interest.
"Mortgage Pass-Through Rate": With respect to the Mortgage Loans that
provide for calculations of interest based on twelve months of 30 days each, the
Mortgage Pass-Through Rate for any Interest Accrual Period is equal to the
Mortgage Rate thereof. The Mortgage Pass-Through Rate with respect to the
Actual/360 Mortgage Loans (other than the Mortgage Loans secured by the
Mortgaged Properties identified as the Pinnacle Retail Portfolio properties and
the Sacramento Office property and the Interest Reserve Loan) for any Interest
Accrual Period, is equal to the Mortgage Rate thereof multiplied by a fraction
the numerator of which is the actual number of days in such Interest Accrual
Period and the denominator of which is 30. The Mortgage Pass-Through Rate with
respect to the Mortgage Loan known as the Sacramento Office loan for any
Interest Accrual Period is an annual rate equal to (a) the Mortgage Rate of such
Mortgage Loan, multiplied by a fraction, the numerator of which is the actual
number of days in such Interest Accrual Period and the denominator of which is
30 plus (b) 0.098%. The Mortgage Pass-Through Rate with respect to the Mortgage
Loan known as the Pinnacle Retail Portfolio loan for any Interest Accrual Period
is an annual rate equal to (a) the Mortgage Rate of such Mortgage Loan,
multiplied by a fraction, the numerator of which is the actual number of days in
such Interest Accrual Period and the denominator of which is 30 plus (b) 0.07%
or, with respect to any portion of the Pinnacle Retail Portfolio loan that is
defeased, 0.0%. The Mortgage Pass-Through Rate with respect to the Interest
Reserve Loan for any Distribution Date (a) relating to any Interest Accrual
Period commencing in any January, February, April, June, September and November
and in any December occurring in a year immediately preceding any year which is
not a leap year, is the Mortgage Rate thereof, and (b) relating to any Interest
Accrual Period commencing in any March, May, July, August and October and in any
December occurring in a year immediately preceding a year which is a leap year,
is equal to the Mortgage Rate thereof multiplied by a fraction the numerator of
which is the actual number of days in such Interest Accrual Period and the
denominator of which is 30. Notwithstanding the foregoing, the Mortgage
Pass-Through Rate with respect to each Mortgage Loan (other than the Mortgage
Loans known as Sacramento Office loan and the Pinnacle Retail Portfolio loan)
for the first Interest Accrual Period is the Mortgage Rate thereof and the
Mortgage Pass-Through Rate for the Mortgage Loans known as Sacramento Office
loan and the Pinnacle Retail Portfolio loan for the first Interest Accrual
Period is the Mortgage Rate thereof plus (i) 0.098% and 0.07%, respectively.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate, not
including any Excess Rate, at which interest accrues on such Mortgage Loan (in
the absence of a default), as set forth on the Mortgage Loan Schedule. The
Mortgage Rate for purposes of calculating the Weighted Average Net Mortgage
Pass-Through Rate shall be the Mortgage Rate of such Mortgage Loan without
taking into account any reduction in the interest rate by a bankruptcy court
pursuant to a plan of reorganization or pursuant to any of its equitable powers
or a reduction in interest or principal due to a modification pursuant to
Section 3.30 hereof.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate, and, with respect
to certain Mortgage Loans, a leasehold estate or both a leasehold estate and fee
estate, or a leasehold estate in a portion of the property and a fee simple
estate in the remainder, in a parcel of land improved by a commercial property,
together with any personal property, fixtures, leases and other property or
rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(d).
"Net Insurance Proceeds": Insurance Proceeds, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Borrower in accordance with the express requirements of the
Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with respect
to any Mortgage Loan net of the amount of (i) Liquidation Expenses incurred with
respect thereto and, (ii) with respect to proceeds received in connection with
the taking of a Mortgaged Property (or portion thereof) by the power of eminent
domain in condemnation, amounts required to be applied to the restoration or
repair of the related Mortgaged Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Pass-Through Rate
for such Mortgage Loan, minus the aggregate of the applicable Servicing Fee
Rate, Additional Servicing Fee Rate and Trustee Fee Rate.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds with
respect to such REO Property net of any insurance premiums, taxes, assessments
and other costs and expenses permitted to be paid therefrom pursuant to Section
3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, and which, in
the good faith business judgment of the Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, will not or, in the case of a
proposed Advance, would not be ultimately recoverable from late payments,
Insurance Proceeds, Liquidation Proceeds and other collections on or in respect
of the related Mortgage Loan. The judgment or determination by the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance shall be evidenced in the case of the Servicer or Special
Servicer, by a certificate of a Servicing Officer delivered to the Trustee, the
Fiscal Agent, the Depositor and, in the case of the Special Servicer, to the
Servicer, and in the case of the Trustee or the Fiscal Agent, by a certificate
of a Responsible Officer of the Trustee or Fiscal Agent, as applicable,
delivered to the Depositor (and the Trustee if the Certificate is from the
Fiscal Agent), which in each case sets forth such judgment or determination and
the procedures and considerations of the Servicer, Special Servicer, the Trustee
or Fiscal Agent, as applicable, forming the basis of such determination
(including, but not limited to, information selected by the Person making such
judgment or determination in its good faith discretion, such as related income
and expense statements, rent rolls, occupancy status, property inspections,
Servicer, Special Servicer, Trustee or Fiscal Agent inquiries, third party
engineering and environmental reports, and an appraisal or any Updated Appraisal
thereof conducted within the past 12 months). Any determination of
non-recoverability made by the Servicer may be made without regard to any value
determination made by the Special Servicer. Notwithstanding the above, the
Trustee and the Fiscal Agent shall be entitled to rely upon any determination by
the Servicer that any Advance previously made is a Nonrecoverable Advance or
that any proposed Advance would, if made, constitute a Nonrecoverable Advance
(and with respect to a proposed P&I Advance, the Trustee and the Fiscal Agent,
as applicable, shall rely on the Servicer's determination that the Advance would
be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as applicable,
determines that it does not have sufficient time to make such a determination).
"Non-U.S. Person": A person that is not a citizen or resident of the United
States, a corporation, partnership, or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if (A) for taxable years beginning after December 31,
1996 (or for taxable years ending after August 20, 1996, if the trustee has made
an applicable election) a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust, or (B) for all other taxable years, such trust is
subject to United States federal income tax regardless of the source of its
income.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage Loan, including any amendments or
modifications, or any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee by the
Servicer or any Holder of a Class LR Certificate pursuant to Section 9.01(c).
"Notional Amount" or "Notional Balance": With respect to each of the Class
A-CS1 and Class A-CS2 Certificates, (a) on or prior to the Distribution Date
occurring in November 1996, an amount equal to the aggregate initial Notional
Balance of such Class, as specified in the Preliminary Statement hereto, and (b)
as of any date of determination after the Distribution Date occurring in
November 1996, the Notional Balance of the Class A-CS1 Certificates will equal
the Component Balance of the Class A-1A Strip Component and the Notional Balance
of the Class A-CS2 Certificates will equal the sum of the Component Balances of
the Class A-1B Strip Component, Class A-1C Strip Component, Class A-1D
Component, Class A-2 Strip Component, Class A-3 Strip Component, Class A-4 Strip
Component and Class A-5 Strip Component.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President (however
denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Servicer customarily performing functions similar to those performed by any of
the above designated officers and also with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, or an authorized
officer of the Depositor, and delivered to the Depositor, the Trustee or the
Servicer, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Servicer,
as the case may be, acceptable to the Trustee, except that any opinion of
counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor") or (c) a
resignation of the Servicer pursuant to Section 6.04, must be an opinion of
counsel who is Independent of the Depositor and the Servicer.
"Original Purchase Agreement": With respect to any Mortgage Loan not
originated by the Mortgage Loan Seller, the agreement between the Mortgage Loan
Seller and the related Originator pursuant to which the Mortgage Loan Seller
acquired such Mortgage Loan.
"Originator": Any of (i) the Mortgage Loan Seller, (ii) Continental Wingate
Associates, Inc., (iii) Bloomfield Acceptance Company, LLC, (iv) Remsen Partners
Ltd., (v) First Maryland Mortgage Corporation, (vi) Hanover Capital Mortgage
Corporation, and (vii) NBD Bank, N.A.
"Other Participant": As defined in Section 3.06 hereof.
"Ownership Interest": Any record or beneficial interest in a Class R or
Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the Servicer,
the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each reference to the
payment or reimbursement of a P&I Advance shall be deemed to include, whether or
not specifically referred to, payment or reimbursement of interest thereon at
the Advance Rate from and including the date of the making of such P&I Advance
through and including the date of payment or reimbursement.
"Pass-Through Rate": With respect to each Class of Certificates (other than
the Class V-1, Class V-2, Class R and Class LR Certificates) or Strip Component
of a Class of Certificates, the Pass-Through Rate for such Class or Strip
Component are set forth below:
Class/Strip Component Pass-Through Rate
Class A-1A Class A-1A Pass-Through Rate
Class A-1B Class A-1B Pass-Through Rate
Class A-1C Class A-1C Pass-Through Rate
Class A-1D Class A-1D Pass-Through Rate
Class A-CS1 Class A-CS1 Pass-Through Rate
Class A-CS2 Class A-CS2 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class A-4 Class A-4 Pass-Through Rate
Class A-5 Class A-5 Pass-Through Rate
Class B-1 Class B-1 Pass-Through Rate
Class B-2 Class B-2 Pass-Through Rate
Class B-3 Class B-3 Pass-Through Rate
Class B-4 Class B-4 Pass-Through Rate
Class B-4H Class B-4H Pass-Through Rate
Class A-1A Strip Component Class A-1A Strip Pass-Through Rate
Class A-1B Strip Component Class A-1B Strip Pass-Through Rate
Class A-1C Strip Component Class A-1C Strip Pass-Through Rate
Class A-1D Strip Component Class A-1D Strip Pass-Through Rate
Class A-2 Strip Component Class A-2 Strip Pass-Through Rate
Class A-3 Strip Component Class A-3 Strip Pass-Through Rate
Class A-4 Strip Component Class A-4 Strip Pass-Through Rate
Class A-5 Strip Component Class A-5 Strip Pass-Through Rate
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class V-1, Class V-2,
Class R and Class LR Certificates), the percentage interest is equal to the
initial denomination of such Certificate divided by the initial Certificate
Balance or Notional Balance, as applicable, of such Class of Certificates. With
respect to any Class V-1, Class V-2, Class R or Class LR Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Servicer, the Trustee or any
of their respective Affiliates and having at all times the required ratings, if
any, provided for in this definition, unless each Rating Agency shall have
confirmed in writing to the Servicer that a lower rating would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment of
principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the
full faith and credit of the United States of America including,
without limitation, obligations of: the U.S. Treasury (all direct or
fully guaranteed obligations), the Farmers Home Administration
(certificates of beneficial ownership), the General Services
Administration (participation certificates), the U.S. Maritime
Administration (guaranteed Title XI financing), the Small Business
Administration (guaranteed participation certificates and guaranteed
pool certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington Metropolitan
Area Transit Authority (guaranteed transit bonds);
(ii) Federal Housing Administration debentures;
(iii)obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the
Farm Credit System (consolidated systemwide bonds and notes), the
Federal Home Loan Banks (consolidated debt obligations), the Federal
National Mortgage Association (debt obligations), the Student Loan
Marketing Association (debt obligations), the Financing Corp. (debt
obligations), and the Resolution Funding Corp. (debt obligations);
(iv) federal funds, unsecured certificates of deposit, time or similar
deposits, bankers' acceptances and repurchase agreements, with
maturities of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating
category by each Rating Agency (or, if not rated by DCR, Moody's or
Fitch, otherwise acceptable to DCR, Moody's or Fitch, as applicable,
as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates);
(v) fully Federal Deposit Insurance Corporation-insured demand and time
deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or
savings bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency (or, if not
rated by DCR, Moody's or Fitch, otherwise acceptable to DCR, Moody's
or Fitch, as applicable, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates);
(vi) debt obligations, with maturities of not more than 365 days, rated by
each Rating Agency (or, if not rated by DCR, Moody's or Fitch,
otherwise acceptance to DCR, Moody's or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates) in its highest long-term
unsecured rating category;
(vii)commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance
thereof), with maturities of not more than 365 days and that is rated
by each Rating Agency (or, if not rated by DCR, Moody's or Fitch,
otherwise acceptable to DCR, Moody's or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates) in its highest short-term
unsecured debt rating;
(viii) the Federated Prime Obligation Money Market Fund (the "Fund") so
long as the Fund is rated by each Rating Agency in its highest
short-term unsecured debt rating (or, if not rated by DCR, Moody's or
Fitch, otherwise acceptable to DCR, Moody's or Fitch, as applicable,
as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates); and
(ix) any other demand, money market or time deposit, demand obligation or
any other obligation, security or investment, provided that each
Rating Agency has confirmed in writing to the Servicer, Special
Servicer or Trustee, as applicable, that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates;
provided, however, that, in the judgment of the Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments or (ii) the right
to receive principal and interest payments derived from the underlying
investment provides a yield to maturity in excess of 120% of the yield to
maturity at par of such underlying investment.
"Permitted Transferee": With respect to a Class R or Class LR Certificate,
any Person or agent thereof that is a Qualified Institutional Buyer, an
Affiliated Person or, prior to the Residual Trigger Date, an Institutional
Accredited Investor, other than (a) a Disqualified Organization, (b) any other
Person so designated by the Certificate Registrar based upon an Opinion of
Counsel (provided at the expense of such Person or the Person requesting the
Transfer) to the effect that the Transfer of an Ownership Interest in any Class
R or Class LR Certificate to such Person may cause the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding, (c) a Person that is a Disqualified Non-U.S. Person and (d) a
Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"Prepayment Assumption": The assumption that each Mortgage Loan with an
Anticipated Repayment Date prepays on such date and that each other Mortgage
Loan does not prepay prior to its respective Maturity Date.
"Prepayment Interest Shortfall": With respect to any Distribution Date, the
amount of any shortfall in collections of interest (adjusted to the applicable
Net Mortgage Pass-Through Rate) resulting from a Principal Prepayment on such
Mortgage Loan during the related Collection Period and prior to the related Due
Date other than Prepayment Interest Shortfalls relating to (a) a Special
Distribution Date or (b) any Specially Serviced Mortgage Loan.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
a Principal Prepayment thereon, not otherwise due thereon in respect of
principal or interest, other than an amount paid in connection with the release
of the related Mortgaged Property through defeasance, which are intended to
compensate the holder of the related Note for prepayment.
"Principal Distribution Amount": For any Distribution Date will be equal to
the sum of:
(i) the principal component of all scheduled Monthly Payments (other than
Balloon Payments) which become due (if received or advanced, including any
Subordinate Class Advance Amounts allocable to principal payments on any Class
other than the most subordinate Class) on the Mortgage Loans on the related Due
Date;
(ii) the principal component of all Assumed Scheduled Payments or Minimum
Defaulted Monthly Payments, as applicable, deemed to become due (if received or
advanced, including, without duplication, any Subordinate Class Advance Amounts
allocable to principal payments on any Class other than the most subordinate
Class) on the related Due Date with respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment;
(iii) the Stated Principal Balance of each Mortgage Loan that was, during
the related Collection Period, repurchased from the Trust Fund in connection
with the breach of a representation or warranty pursuant to Section 2.03 or
purchased from the Trust Fund pursuant to Section 9.01;
(iv) the portion of Unscheduled Payments allocable to principal of any
Mortgage Loan that was liquidated during the related Collection Period;
(v) the principal component of all Balloon Payments and, to the extent not
included in the preceding clauses, any other principal payment on any Mortgage
Loan received on or after the Maturity Date thereof, to the extent received
during the related Collection Period;
(vi) to the extent not included in the preceding clauses (iii) or (iv), all
other Principal Prepayments received in the related Collection Period; and
(vii) to the extent not included in the preceding clauses, any other full
or partial recoveries in respect of principal, including Insurance Proceeds,
Liquidation Proceeds and Net REO Proceeds;
less (x) any amounts received on a Mortgage Loan which represent recoveries of
Subordinate Class Advance Amounts allocable to principal and previously included
in a calculation pursuant to clauses (i) or (ii) above for any prior
Distribution Date and (y) any amounts distributed to Certificateholders on any
Special Distribution Date.
"Principal Prepayment": Any payment of principal made by the Borrower on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Private Global Certificate": Each of the Regulation S Global Certificates
or Rule 144A Global Certificates with respect to the Class A-CS2, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates if and so long as such Class of
Certificates is registered in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect and preserve
the security for a Mortgage Loan or taxes and assessments or insurance premiums,
pursuant to Section 3.04 or Section 3.24, as applicable. Each reference to the
payment or reimbursement of a Property Advance shall be deemed to include,
whether or not specifically referred to, payment or reimbursement of interest
thereon at the Advance Rate from and including the date of the making of such
Advance through and including the date of payment or reimbursement.
"Property Protection Expenses": Any costs and expenses incurred by the
Servicer or the Special Servicer pursuant to Sections 3.04, 3.08, 3.10(b),
3.10(e), 3.10(f), 3.10(g), 3.10(h), 3.10(k), 3.17(b) and 3.18 or indicated
herein as being a cost or expense of the Trust Fund or the Lower-Tier REMIC or
Upper-Tier REMIC to be advanced by the Servicer or the Special Servicer, as
applicable.
"Public Global Certificate": Each of the Class A-1A, Class A-1B, Class
A-1C, Class A-1D, Class A-CS1, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates so long as any such Class of Certificates is registered in the name
of a nominee of the Depository.
"Qualified Institutional Buyer": A qualified institutional buyer within the
meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance company or
security or bonding company qualified to write the related insurance policy in
the relevant jurisdiction which shall have a claims paying ability of "AA" or
better by Fitch (or, if such company is not rated by Fitch, is rated at least
A-1X by A.M. Best's Key Rating Guide) and "Baa3" or better by Moody's and "A" or
better by DCR (or, if such company is not rated by DCR, is rated at least in an
equivalent category by at least two nationally recognized statistical ratings
organizations), (ii) in the case of public liability insurance policies required
to be maintained with respect to REO Properties in accordance with Section
3.08(a), shall have a claims paying ability of "A" or better by Fitch (or, if
such company is not rated by Fitch, is rated at least A-1X by A.M. Best's Key
Rating Guide) and DCR (or, if such company is not rated by DCR, is rated at
least in an equivalent category by at least two nationally recognized
statistical ratings organizations) and "Baa3" or better by Moody's and (iii) in
the case of the fidelity bond and the errors and omissions insurance required to
be maintained pursuant to Section 3.08(c), shall have a claims paying ability
rated by each Rating Agency no lower than two ratings categories (without regard
to pluses or minuses or numeric qualifications) lower than the highest rating of
any outstanding Class of Certificates from time to time (or if such company is
not rated by DCR, is rated at least in an equivalent category by at least two
nationally recognized statistical ratings organizations and, if such company is
not rated by Fitch, is rated at least A-VIII by A.M. Best's Key Rating Guide),
but in no event lower than "BBB" by Fitch and DCR and "Baa3" by Moody's, unless
in any such case each of the Rating Agencies has confirmed in writing that
obtaining the related insurance from an insurance company that is not rated by
each of the Rating Agencies (subject to the foregoing exceptions) or that has a
lower claims-paying ability than such requirements shall not result, in and of
itself, in a downgrade, qualification or withdrawal of the then current ratings
by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation
as a qualified mortgage, or any substantially similar successor provision).
"Rated Final Distribution Date": October 13, 2026, the next Distribution
Date occurring after the latest Assumed Maturity Date of any of the Mortgage
Loans.
"Rating Agency": Any of Duff & Phelps Credit Rating Co., Fitch Investors
Service, L.P. or Moody's Investors Service, Inc. References herein to the
highest long-term unsecured debt rating category of a Rating Agency shall mean
"AAA" with respect to DCR and Fitch and "Aaa" with respect to Moody's and in the
case of any other rating agency shall mean such highest rating category or
better without regard to any plus or minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans in the month in which
such Distribution Date occurs.
"Reassignment of Assignment of Leases, Rents and Profits": As defined in
Section 2.01(viii).
"Record Date": With respect to each Distribution Date, the close of
business on the tenth day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the first Distribution Date, for all purposes
other than receipt of the distribution pursuant to Section 4.01 on such
Distribution Date, the Record Date shall be the Closing Date.
"Reduction Interest Distribution Amount": With respect to any Distribution
Date for any Strip Component (other than the Class A-1A, Class A-1B and Class
A-1C Strip Components), the amount of interest accrued for the Interest Accrual
Period at the Pass-Through Rate on such Strip Component for such Interest
Accrual Period on the aggregate amount of Appraisal Reduction Amounts and
Delinquency Reduction Amounts allocated thereto as of such Distribution Date as
set forth in Section 4.01(i).
"Reduction Interest Shortfalls": With respect to any Distribution Date, for
any Strip Component (other than the Class A-1A Strip Component, Class A-1B Strip
Component, and Class A-1C Strip Component) any shortfall in the amount of
Reduction Interest Distribution Amounts required to be distributed to the Class
A-CS2 Certificates with respect to such Strip Component on such Distribution
Date.
"Regular Certificates": The Class A-1A, Class A-1B, Class A-1C, Class A-1D,
Class A-CS1, Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4 and Class B-4H Certificates.
"Regular Servicing Period": Any Interest Accrual Period other than a
Special Servicing Period.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": As defined in Section 5.01.
"Regulation S Investor": With respect to a transferee of an interest in a
Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in the
form of Exhibit G hereto.
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class or Classes of Lower-Tier Regular Interests, the related Class of
Certificates set forth below and for any Class of Certificates, the related
Class or Classes of Lower-Tier Regular Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
Class A-1A Class A-1A-L Interest
Class A-1B Class A-1B-L Interest
Class A-1C Class A-1C-L Interest
Class A-1D Class A-1D-L Interest
Class A-2 Class A-2-L Interest
Class A-3 Class A-3-L Interest
Class A-4 Class A-4-L Interest
Class A-5 Class A-5-L Interest
Class B-1 Class B-1-L Interest
Class B-2 Class B-2-L Interest
Class B-3 Class B-3-L Interest
Class B-4 Class B-4-L Interest
Class B-4H Class B-4H-L Interest
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any amount
received or accrued, directly or indirectly, with respect to such REO
Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts
or sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5) of the
Code;
(iii)any amount received or accrued, directly or indirectly, with respect
to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily furnished in
connection with the rental of property to tenants in buildings of a
similar class in the same geographic market as such REO Property
within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(v) rent attributable to personal property unless such personal property
is leased under, or in connection with, the lease of such REO Property
and, for any taxable year of the Trust Fund, such rent is no greater
than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Special Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"Repurchase Price": With respect to any Mortgage Loan to be repurchased
pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially Serviced Mortgage
Loan or any REO Mortgage Loan to be sold or repurchased pursuant to Section
3.18, an amount, calculated by the Servicer, equal to:
(i) the unpaid principal balance of such Mortgage Loan as of the Due Date
as to which a payment was last made by the Borrower (less any Advances
previously made on account of principal); plus
(ii) unpaid accrued interest from the Due Date as to which interest was
last paid by the Borrower up to the Due Date in the month following
the month in which the purchase or repurchase occurred at a rate equal
to the Mortgage Rate on the unpaid principal balance of such Mortgage
Loan (less any Advances previously made on account of interest); plus
(iii)any unreimbursed Advances and unpaid Servicing Fees, Trustee Fees and
Special Servicing Compensation allocable to such Mortgage Loan
together with interest thereon at the Advance Rate; plus
(iv) in the event that the Mortgage Loan is required to be repurchased
pursuant to Sections 2.03(d) or 2.03(e), expenses reasonably incurred
or to be incurred by the Servicer, the Special Servicer or the Trustee
in respect of the breach or defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve Account may be a sub-account of a related Cash Collateral
Account. Any Reserve Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive the reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. The Servicer shall be permitted to make withdrawals therefrom for
deposit into the related Cash Collateral Account, if applicable, or the
Collection Account or for the purposes set forth under the related Mortgage
Loan.
"Residual Transfer Opinion": An opinion of counsel to the Depositor
acceptable to the Trustee and the Certificate Registrar to the effect that the
continued ownership after the Residual Trigger Date of an Ownership Interest by
an Institutional Accredited Investor shall not cause the Trust Fund to be
required to be registered as an investment company under the Investment Company
Act of 1940, as amended.
"Residual Trigger Date": The date on which more than 20% of the aggregate
then outstanding principal balance of the Mortgage Loans is secured by U.S.
government obligations pursuant to the release of Mortgaged Properties through
defeasance.
"Responsible Officer": Any officer of the Asset-Backed Trust Services
Department of the Trustee or the Fiscal Agent (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Servicer by the
Trustee and the Fiscal Agent, as such list may from time to time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Revised Rate": With respect to the Mortgage Loans, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": As defined in Section 5.01.
"Rule 144A Transfer Certificate": A certificate substantially in the form
of Exhibit G hereto.
"Scheduled Final Distribution Date": As to each Class of Certificates,
October 13, 2026, the next Distribution Date occurring after the latest maturity
date of any Mortgage Loan.
"Securities Legend": With respect to each Rule 144A Global Certificate,
Residual Certificate or any Individual Certificate other than an Individual
Certificate issued after the Restricted Period in exchange for or transfer of a
beneficial interest in a Regulation S Global Certificate, the legend set forth
in, and substantially in the form of, Exhibit K hereto.
"Servicer": AMRESCO Management, Inc., a Texas corporation, or its successor
in interest, or any successor Servicer appointed as herein provided.
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Prepayment Interest Shortfall": With respect to any Prepayment
Interest Shortfall occurring on any Distribution Date, the amount equal to (i)
the sum of the Servicing Fee payable on such Distribution Date and the
investment income payable to the Servicer in accordance with Section 3.07 with
respect to all Principal Prepayments during the related Collection Period, less
(ii) the aggregate of all Prepayment Interest Shortfalls for such Distribution
Date, provided, that, if the result of the foregoing is less than zero then the
amount of the Servicer Prepayment Interest Shortfall for such Distribution Date
shall be zero.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer and/or the
Special Servicer in such media as may be agreed upon by the Servicer, the
Special Servicer and the Trustee containing such information regarding the
Mortgage Loans as will permit the Trustee to calculate the amounts to be
distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Trustee may from time to time agree.
"Servicer's Appraisal Estimate": As defined in the definition of Appraisal
Reduction Amount.
"Servicing Compensation": With respect to any Distribution Date, the
related Servicing Fee and any other fees, charges or other amounts payable to
the Servicer on such Distribution Date.
"Servicing Fee": With respect to each Mortgage Loan for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i)
one-twelfth of the Servicing Fee Rate and (ii) the Stated Principal Balance of
such Mortgage Loan as of the Due Date (after giving effect to all payments of
principal on such Mortgage Loan on such Due Date) in the month preceding the
month in which such Distribution Date occurs.
"Servicing Fee Rate": A rate equal to 0.053% per annum.
"Servicing Officer": Any officer or employee of the Servicer or the Special
Servicer, as applicable, involved in, or responsible for, the administration and
servicing of the Mortgage Loans or this Agreement and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee by the Servicer
or the Special Servicer, as applicable, as such list may from time to time be
amended.
"Servicing Standard": With respect to the Servicer or Special Servicer
shall mean the servicing of the Mortgage Loans by the Servicer or Special
Servicer solely in the best interests of and for the benefit of all of the
Certificateholders (as determined by the Servicer or Special Servicer as the
case may be, in its reasonable judgment) and in accordance with applicable law,
the specific terms of the respective Mortgage Loans and this Agreement and to
the extent not inconsistent with the foregoing, in the same manner in which, and
with the same care, skill, prudence and diligence with which, it (i) services
and administers similar mortgage loans for other third-party portfolios or (ii)
administers mortgage loans for its own account, whichever standard is higher,
but in any case without regard to:
(i) any known relationship that the Servicer, the Special Servicer, any
subservicer or any Affiliate of the Servicer, the Special Servicer or
any subservicer may have with any Borrower;
(ii) the ownership of any Certificate by the Servicer, the Special Servicer
or any Affiliate;
(iii)the Servicer's or Special Servicer's obligation to make P&I Advances,
Property Advances or to incur servicing expenses with respect to the
Mortgage Loans;
(iv) the Servicer's, Special Servicer's or any sub-servicer's right to
receive compensation for its services hereunder or with respect to any
particular transaction; or
(v) the ownership, or servicing or management for others, by the Servicer,
Special Servicer or any sub-servicer, of any other mortgage loans or
property.
"Similar Law": As defined in Section 5.02(k) hereof.
"Special Distribution Date": The Business Day that is two Business Days
after any date, other than a Due Date, on which a prepayment is made on the
Malibu Canyon Loan after the expiration of the related Lock-out Period for such
loan.
"Special Event Report": As defined in Section 3.22(b) hereof.
"Special Servicer": CRIIMI MAE Services Limited Partnership, a Maryland
limited partnership, or any successor Special Servicer appointed as provided in
Section 3.25. In the event that at any time the Servicer is the Special Servicer
and the Servicer is terminated or resigns as the Servicer hereunder, the
Servicer shall be terminated as the Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Additional Servicing Fee, Special Servicing Fee and Principal Recovery Fee
which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and any Distribution Date, an amount per Special Servicing Period equal to
the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan as of the Due
Date (after giving effect to all payments of principal on such Specially
Serviced Mortgage Loan on such Due Date) in the month preceding the month in
which such Distribution Date occurs.
"Special Servicing Fee Rate": A rate equal to 0.50% per annum.
"Special Servicing Period": Any Interest Accrual Period during which a
Mortgage Loan is at any time a Specially Serviced Mortgage Loan.
"Specially Serviced Mortgage Loan": Subject to Section 3.26, any Mortgage
Loan with respect to which:
(i) the related Borrower has not made two consecutive Monthly Payments;
(ii) the Servicer, the Trustee or the Fiscal Agent, individually or
collectively, have made four consecutive P&I Advances (regardless of
whether such P&I Advances have been reimbursed);
(iii)the related Borrower has expressed to the Servicer an inability to
pay or a hardship in paying the Mortgage Loan in accordance with its
terms;
(iv) the Servicer has received notice that the Borrower has become the
subject of any bankruptcy, insolvency or similar proceeding, admitted
in writing the inability to pay its debts as they come due or made an
assignment for the benefit of creditors;
(v) the Servicer has received notice of a foreclosure or threatened
foreclosure of any lien on the Mortgage Property securing the Mortgage
Loan;
(vi) a default of which (A) the Servicer has notice (other than a failure
by the Borrower to pay principal or interest) and (B) which materially
and adversely affects the interests of the Certificateholders has
occurred and remained unremedied for the applicable grace period
specified in the Mortgage Loan (or, if no grace period is specified,
60 days); provided, that a default requiring a Property Advance shall
be deemed to materially and adversely affect the interests of the
Certificateholders;
(vii)the Special Servicer proposes to commence foreclosure or other
workout arrangements;
(viii) the related Borrower has failed to make a Balloon Payment as and
when due; or
(ix) in the opinion of the Servicer (consistent with the Servicing
Standard) a default under a Mortgage Loan is imminent and such
Mortgage Loan deserves the attention of the Special Servicer.
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause (i) above, if
the earlier of such Monthly Payments is received prior to the next due
date under such Mortgage Loan;
(b) with respect to the circumstances described in clause (i) or (ii) or
(viii) above, when the Borrower thereunder has brought the Mortgage
Loan current (or, with respect to the circumstances described in
clause (viii), pursuant to any work-out implemented by the Special
Servicer) and thereafter made three consecutive full and timely
Monthly Payments (including pursuant to any workout of the Mortgage
Loan);
(c) with respect to the circumstances described in clause (iii), (iv), (v)
and (vii) above, when such circumstances cease to exist in the good
faith judgment of the Servicer; or
(d) with respect to the circumstances described in clause (vi) above, when
such default is cured;
provided, further, that at that time no circumstance identified in clauses (i)
through (vii) above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan.
"Spread Rate": The Spread Rate for each Class of Certificates is as set
forth below:
Class Spread Rate
Class A-CS1..................................... 2.0%
Class A-CS2..................................... 2.0%
Class A-1A...................................... 0.5%
Class A-1B...................................... 0.65%
Class A-1C...................................... 0.75%
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at any date
of determination, an amount equal to (a) the principal balance as of the Cut-off
Date of such Mortgage Loan, minus (b) the sum of (i) the principal portion of
each Monthly Payment due on such Mortgage Loan after the Cut-off Date up to such
date of determination, if received from the Borrower or advanced by the
Servicer, Trustee, Fiscal Agent or the most subordinate Class of Certificates
(with respect to any Subordinate Class Advance Amount), (ii) all voluntary and
involuntary principal prepayments and other unscheduled collections of principal
received with respect to such Mortgage Loan and (iii) any principal forgiven by
the Special Servicer or Interest Shortfalls resulting from reductions or
deferrals of interest resulting from modifications made pursuant to Section 3.30
hereof. The Stated Principal Balance of a Mortgage Loan with respect to which
title to the related Mortgaged Property has been acquired is equal to the
principal balance thereof outstanding on the date on which such title is
acquired less any Net REO Proceeds allocated to principal on such Mortgage Loan.
The Stated Principal Balance of a Specially Serviced Mortgage Loan with respect
to which the Servicer or Special Servicer has made a Final Recovery
Determination is zero.
"Strip Component": With respect to the Class A-CS1 Certificates, the Class
A-1A Strip Component. With respect to the Class A-CS2 Certificates, the Class
A-1B Strip Component, Class A-1C Strip Component, Class A-1D Strip Component,
Class A-2 Strip Component, Class A-3 Strip Component, Class A-4 Strip Component
and the Class A-5 Strip Component.
"Subordinate Class Advance Amount": As defined in Section 4.06(d).
"Subordinate Class Advance Recovery": With respect to any Mortgage Loan for
which a Subordinate Class Advance Amount has been advanced, an amount equal to
all Subordinate Class Advance Amounts relating to such Mortgage Loan minus the
sum of all Delinquencies on such Mortgage Loan that have not been cured and any
outstanding P&I Advances with respect to such Mortgage Loan. In no event shall a
Subordinate Class Advance Recovery include any Net Liquidation Proceeds, Net
Insurance Proceeds or proceeds from any condemnation with respect to a related
Mortgaged Property.
"Successor Manager": As defined in Section 3.19(b) below.
"Summary Report": A quarterly report or annual summary of quarterly reports
setting forth the information with respect to the Borrowers and Mortgaged
Properties, substantially in the form of Exhibit J hereto.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to this
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guaranties given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve
Accounts (to the extent such assets in such accounts are not assets of the
respective Borrowers), the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Excess Interest Distribution Account,
Interest Reserve Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreement and Original Purchase Agreements; and
(xi) the proceeds of any of the foregoing (other than any interest earned on
deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and
any Reserve Accounts, to the extent such interest belongs to the related
Borrower).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, in its capacity as trustee, or its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i)
one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date (after giving effect to all
payments of principal on such Mortgage Loan on such Due Date) in the month
preceding the month in which such Distribution Date occurs.
"Trustee Fee Rate": A rate equal to 0.005% per annum.
"Underwriter": Nomura Securities International, Inc.
"Unrestricted Date": The day immediately following the last day of the
Restricted Period.
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
Period, all Net Liquidation Proceeds and Net Insurance Proceeds payable under
such Mortgage Loan, the Repurchase Price of any Mortgage Loan that is
repurchased or purchased pursuant to Sections 2.03(d), 2.03(e) or 9.01, and any
other payments under or with respect to such Mortgage Loan not scheduled to be
made, including Principal Prepayments received by the Servicer, but excluding
Prepayment Premiums, during such Collection Period.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO Property,
as the case may be, conducted subsequent to any appraisal performed on or prior
to the Cut-off Date and in accordance with MAI standards, the costs of which
shall be paid as a Property Advance by the Servicer. Updated Appraisals shall be
conducted by an MAI appraiser selected by the Servicer after consultation with
the Special Servicer.
"Upper-Tier Distribution Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Trustee pursuant
to Section 3.05(c), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3, Upper-Tier Distribution Account" and
which must be an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class V-1, Class V-2,
Class R and Class LR Certificates, (b) 0.4% in the case of the Class A-CS1
Certificates, 8% in the case of the Class A-CS2 Certificates (the sum of such
percentages for each such Class outstanding is the "Fixed Voting Rights
Percentage"), (c) in the case of any of the Class A-1A, Class A-1B, Class A-1C,
Class A-1D, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-4H Certificates, a percentage equal to the
product of (i) 100% minus the Fixed Voting Rights Percentage multiplied by (ii)
a fraction, the numerator of which is equal to the aggregate outstanding
Certificate Balance of any such Class and the denominator of which is equal to
the aggregate outstanding Certificate Balances of all Classes of Certificates.
The Class A-CS1 and Class A-CS2 Certificates shall not be entitled to vote with
respect to proposed extensions of a Specially Serviced Mortgage Loan. The Voting
Rights of any Class of Certificates shall be allocated among Holders of
Certificates of such Class in proportion to their respective Percentage
Interests. The aggregate Voting Rights of Holders of more than one Class of
Certificates shall be equal to the sum of the products of each such Holder's
Voting Rights and the percentage of Voting Rights allocated to the related Class
of Certificates. Any Certificateholder may transfer its Voting Rights without
transferring its ownership interest in the related Certificates provided that
such Certificateholder provides notice of such transfer to the Trustee prior to
the effectiveness of such transfer. The Fixed Voting Right Percentage of the
Class A-CS1 and Class A-CS2 Certificates will be proportionally reduced upon the
allocation of Appraisal Reduction Amounts with respect to any component of such
Classes based on the amount of such reduction.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to any
Distribution Date (other than a Distribution Date following a Special
Distribution Date), a per annum rate equal to a fraction (expressed as a
percentage) the numerator of which is the sum of the products of (i) the Net
Mortgage Pass-Through Rate and (ii) the Stated Principal Balance of each
Mortgage Loan and the denominator of which is the sum of the Stated Principal
Balances of each Mortgage Loan as of the Due Date occurring in the month
preceding the month in which such Distribution Date occurs. With respect to any
Special Distribution Date and the Distribution Date occurring after such Special
Distribution Date, a per annum rate equal to a fraction (expressed as a
percentage) (i) the numerator of which is the sum of (A) the products of the Net
Mortgage Pass Through Rate and the Stated Principal Balance of each Mortgage
Loan (other than the Malibu Canyon Loan), (B) the product of (1) the Net
Mortgage Pass Through Rate of the Malibu Canyon Loan and (2) the Stated
Principal Balance of the Malibu Canyon Loan less the related amount of Malibu
Principal and (C) the product of the Net Mortgage Pass Through Rate of the
Malibu Canyon Loan and the related amount of Malibu Principal multiplied by a
fraction (1) the numerator of which is the number of days from the first day of
the related Interest Accrual Period to the day on which the related Malibu
Principal was received and (2) the denominator of which is 30 and (ii) the
denominator of which is the sum of (A) the Stated Principal Balances of each
Mortgage Loan (other than the Malibu Canyon Loan) as of the Due Date occurring
in the month preceding the month in which such Distribution Date occurs, (B) the
Stated Principal Balance of the Malibu Canyon Loan as of the Due Date occurring
in the month preceding the month in which such Distribution Date occurs less the
related amount of Malibu Principal and (C) the related amount of Malibu
Principal multiplied by a fraction (1) the numerator of which is the number of
days from the first day of the related Interest Accrual Period to the day on
which the related Malibu Principal was received and (2) the denominator of which
is 30.
"Withheld Amounts": As defined in Section 3.27(a).
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans (other
than the Actual/360 Mortgage Loans) and of Advances provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months. All
calculations of interest with respect to the Actual/360 Mortgage Loans and of
Advances provided for herein shall be made as set forth in such Mortgage Loans
with respect to the calculation of the related Mortgage Rate.
(b) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, Special Servicer or the Trustee;
provided, however, that for purposes of calculating distributions on the
Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed
to be received on the date they are applied in accordance with Section 3.01(b)
to reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(c) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing in excess of Monthly Payments shall be
applied to Default Interest and other amounts due on such Mortgage Loan prior to
the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of the definitions of "Minimum Defaulted Monthly Payment",
"Special Servicing Fee", Section 3.19, Section 3.12, Section 3.25, Section 3.30
and Section 4.06(d), references to the most or next most subordinate Class of
Certificates (or Lower-Tier Regular Interests) outstanding at any time shall
mean the most or next most subordinate Class of Certificates (or Lower-Tier
Regular Interests) then outstanding as among the Class A-1A, Class A-1B, Class
A-1C, Class A-CS1, Class A-CS2, Class A-1D, Class A-2, Class A-3, Class A-4,
Class A-5, Class B-1, Class B-2, Class B-3, Class B-4 and Class B-4H
Certificates (and the Classes of Related Lower-Tier Regular Interests). For such
purposes, the Class B-4 and Class B-4H Certificates (and the Classes of Related
Lower-Tier Regular Interests) together shall be considered to be one Class and
the Class A-1A, Class A-1B, Class A-1C, Class A-CS1 and Class A-CS2 Certificates
(and the Classes of Related Lower-Tier Regular Interests) collectively shall be
considered to be one Class. For purposes of this Agreement, each Class of
Certificates other than the Class V-1, Class V-2, Class LR and Class R
Certificates shall be deemed to be outstanding only to the extent its respective
Certificate Balance has not been reduced to zero. For purposes of this
Agreement, the Class V-1 Certificates shall be deemed to be outstanding so long
as there are any Notes outstanding, the Class V-2 Certificates shall be deemed
outstanding so long as there are any Notes outstanding that provide for the
payment of Excess Interest, the Class B-4H Certificates and the Class B-4H-L
Interest shall be deemed to be outstanding so long as there are any Notes
outstanding that provide for payments of Prepayment Premiums in connection with
voluntary or involuntary prepayments and the Class R and Class LR Certificates
shall be deemed to be outstanding so long as the Trust Fund has not been
terminated pursuant to Section 9.01. For purposes of this Agreement, the Class
A-CS1 and Class A-CS2 Certificates shall be deemed to be outstanding until their
respective Notional Balances have been reduced to zero.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase and Sale Agreement.
The Depositor, concurrently with the execution and delivery hereof, does
hereby sell, transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent herein provided) all the right, title and
interest of the Depositor in and to the Mortgage Loans and the Anchorage
Participation (except to the extent the Other Participant has an interest in the
related loan documents), including all rights to payment in respect thereof,
except as set forth below, and any security interest thereunder (whether in real
or personal property and whether tangible or intangible) in favor of the
Depositor, and all Reserve Accounts, Lock-Box Accounts, Cash Collateral Accounts
and all other assets included or to be included in the Trust Fund for the
benefit of the Certificateholders. Such transfer and assignment includes all
interest and principal due on or with respect to the Mortgage Loans after the
Cut-off Date. In connection with such transfer and assignment, the Depositor
shall make a cash deposit to the Collection Account in an amount equal to the
Cash Deposit. The Depositor, concurrently with execution and delivery hereof,
does also hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent provided herein) all the right, title and
interest of the Depositor in, to and under the Mortgage Loan Purchase and Sale
Agreement and, in, to and under each Original Purchase Agreement as assignee of
the Mortgage Loan Seller's rights thereunder to the extent related to any
Mortgage Loan. The Servicer, Special Servicer or the Trustee shall notify the
Mortgage Loan Seller and the Depositor upon such party's becoming aware of any
breach of the representations and warranties contained in this Agreement or the
Mortgage Loan Purchase and Sale Agreement that gives rise to a cure or
repurchase obligation; provided, that the failure of the Servicer, Special
Servicer or Trustee to give such notification shall not constitute a waiver of
any cure or repurchase obligation. The Depositor shall cause the Reserve
Accounts, Cash Collateral Accounts and Lock-Box Accounts to be transferred to
and held in the name of the Servicer on behalf of the Trustee as successor to
the Mortgage Loan Seller and the Originators.
In connection with such transfer and assignment, the Depositor does hereby
deliver to, and deposit with, the Custodian (on behalf of the Trustee), with
copies to the Servicer and the Special Servicer, the following documents or
instruments with respect to each Mortgage Loan so assigned (provided, however,
the documents specified in item (ix) shall be delivered only to the Servicer):
(i) the original of the Note, endorsed without recourse to the order of
the Trustee in the following form: "Pay to the order of LaSalle
National Bank, as Trustee, without recourse" which Note and all
endorsements thereon shall, unless the Mortgage Loan was originated by
the Mortgage Loan Seller (as indicated on the Mortgage Loan Schedule),
show a complete chain of endorsement from the Originator to the
Trustee;
(ii) the original recorded Mortgage or counterpart thereof showing the
Originator as mortgagee or, if any such original Mortgage has not been
returned from the applicable public recording office, a copy thereof
certified to be a true and complete copy of the original thereof
submitted for recording;
(iii)an executed Assignment of Mortgage in suitable form for recordation
in the jurisdiction in which the Mortgaged Property is located to
"LaSalle National Bank, as Trustee, without recourse";
(iv) if the related security agreement is separate from the Mortgage, the
original executed version or counterpart thereof of such security
agreement and the assignment thereof to Trustee;
(v) a copy of the UCC-1 financing statement, together with an original
executed UCC-2 or UCC-3 financing statement, in a form suitable for
filing, disclosing the assignment to the Trustee of the security
interest in the personal property (if any) constituting security for
repayment of the Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof relating to
such Mortgage Loan, if any;
(vii)the original lender's title insurance policy (or the original pro
forma title insurance policy), together with any endorsements thereto;
(viii) if any related Assignment of Leases, Rents and Profits is separate
from the Mortgage, the original executed version or counterpart
thereof, together with an executed reassignment of such instrument to
the Trustee (a "Reassignment of Assignment of Leases, Rents and
Profits") in suitable form for recordation in the jurisdiction in
which the Mortgaged Property is located (which reassignment, however,
may be included in the Assignment of Mortgage and need not be a
separate instrument);
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage Loans,
if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xi) a copy of the related ground lease, as amended, for the Mortgaged
Property, if any;
(xii)if the related assignment of contracts is separate from the Mortgage,
the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Agreement is
separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box
Accounts, if any, a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the Mortgage Loan Seller's
security interest in the Reserve Accounts, Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-3
financing statements assigning such security interest to the Trustee
on behalf of the Certificateholders);
(xiv)any and all amendments, modifications and supplements to, and waivers
related to, any of the foregoing; and
(xv) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Servicer shall, to the
extent possession thereof has been delivered to it, at the expense of the
Depositor, (1) record, (a) each Assignment of Mortgage referred to in Section
2.01(iii) which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in Section
2.01(viii) (if not otherwise included in the related Assignment of Mortgage)
which has not yet been submitted for recordation; and (2) file, each UCC-2 or
UCC-3 financing statement referred to in Section 2.01(v) or (xiii) which has not
yet been submitted for filing. The Servicer shall upon delivery promptly submit
(and in no event later than five Business Days following the receipt of the
related documents in the case of clause 1(a) above and 60 days following the
Closing Date in the case of clauses 1(b) and 2 above) for recording or filing,
as the case may be, in the appropriate public recording office, each such
document. In the event that any such document is lost or returned unrecorded
because of a defect therein, the Servicer, at the expense of the Depositor,
shall use its best efforts to promptly prepare a substitute document for
signature by the Depositor, and thereafter the Servicer shall cause each such
document to be duly recorded. The Servicer shall, promptly upon receipt of the
original recorded copy (and in no event later than five Business Days following
such receipt) deliver such original to the Custodian. Notwithstanding anything
to the contrary contained in this Section 2.01, in those instances where the
public recording office retains the original Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable, after
any has been recorded, the obligations hereunder of the Depositor shall be
deemed to have been satisfied upon delivery to the Custodian of a copy of such
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, certified by the public recording office to be a
true and complete copy of the recorded original thereof. If a pro forma title
insurance policy has been delivered to the Custodian in lieu of an original
title insurance policy, the Depositor will promptly deliver to the Custodian the
related original title insurance policy upon receipt thereof. The Depositor
shall promptly cause the UCC-1's referred to in Section 2.01(v) to be filed in
the applicable public recording office and upon filing will promptly deliver to
the Custodian the related UCC-1, with evidence of filing thereon. The Depositor
shall reimburse the Servicer for all out-of-pocket expenses incurred and filing
fees paid by the Servicer in connection with its obligations under this
paragraph. Copies of recorded or filed Assignments, Reassignments, UCC-1's and
UCC-3's shall be delivered to the Trustee by the Depositor or Servicer, as
applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded document
described in Section 2.01 on the Closing Date, the Depositor shall use its best
efforts, promptly upon receipt thereof and in any case not later than 45 days
from the Closing Date, to deliver such original or certified recorded documents
to the Custodian (unless the Depositor is delayed in making such delivery by
reason of the fact that such documents shall not have been returned by the
appropriate recording office in which case it shall notify the Custodian and the
Trustee in writing of such delay and shall deliver such documents to the
Custodian promptly upon the Depositor's receipt thereof). By its execution and
delivery of this Agreement, the Trustee acknowledges the assignment to it of the
Mortgage Loans in good faith without notice of adverse claims and declares that
the Custodian holds and will hold such documents and all others delivered to it
constituting the Mortgage File (to the extent the documents constituting the
Mortgage File are actually delivered to the Custodian) for any Mortgage Loan
assigned to the Trustee hereunder in trust, upon the conditions herein set
forth, for the use and benefit of all present and future Certificateholders.
With the exception of any Notes listed by the Trustee on an exception report and
delivered to the Depositor on the Closing Date, the Trustee hereby acknowledges
the receipt of the Notes. The Trustee agrees to review each Mortgage File within
45 days after the later of (a) the Trustee's receipt of such Mortgage File or
(b) execution and delivery of this Agreement, to ascertain that all documents
(other than documents referred to in clause (ix) of Section 2.01 which shall be
delivered to the Servicer) referred to in Section 2.01 above (in the case of the
documents referred to in Section 2.01(iv), (v), (vi), (vii) (in the case of any
endorsement thereto), (viii) and (x) through (xv), as identified to it in
writing by the Depositor) and any original recorded documents referred to in the
first sentence of this Section included in the delivery of a Mortgage File have
been received, have been executed, appear to be what they purport to be, purport
to be recorded or filed (as applicable) and have not been torn, mutilated or
otherwise defaced, and that such documents relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. In so doing, the Trustee may rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and the Mortgage
Loan Seller by providing a written report, setting forth for each affected
Mortgage Loan, with particularity, the nature of the defective or missing
document. The Depositor shall, or shall cause the Mortgage Loan Seller to,
deliver an executed, recorded or undamaged document, as applicable, or, if the
failure to deliver such document in such form has a material adverse effect on
the security provided by the related Mortgaged Property, the Depositor shall, or
shall cause the Mortgage Loan Seller to, repurchase the related Mortgage Loan in
the manner provided in Section 2.03. None of the Servicer, the Special Servicer
and Trustee shall be responsible for any loss, cost, damage or expense to the
Trust Fund resulting from any failure to receive any document constituting a
portion of a Mortgage File noted on such a report or for any failure by the
Depositor to use its best efforts to deliver any such document.
In reviewing any Mortgage File pursuant to the preceding paragraph or
Section 2.01, the Servicer shall have no responsibility to cause the Trustee to,
and the Trustee will have no responsibility to, determine whether any document
or opinion is legal, valid, binding or enforceable, whether the text of any
assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, whether a blanket assignment is permitted in any
applicable jurisdiction, or whether any Person executing any document or
rendering any opinion is authorized to do so or whether any signature thereon is
genuine.
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in Illinois on the date hereof) in
Illinois and, except as otherwise specifically provided in this Agreement, shall
not remove such instruments from Illinois, as applicable, unless it receives an
Opinion of Counsel (obtained and delivered at the expense of the Person
requesting the removal of such instruments from Illinois) that in the event the
transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after
such removal, the Trustee will possess a first priority perfected security
interest in such instruments.
SECTION 2.03. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) The Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and has
the power and authority to execute, deliver and perform this Agreement
and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and transfer the
Mortgage Loans in accordance with this Agreement;
(iii)This Agreement has been duly and validly authorized, executed and
delivered by the Depositor and assuming the due authorization,
execution and delivery of this Agreement by each other party hereto,
this Agreement and all of the obligations of the Depositor hereunder
are the legal, valid and binding obligations of the Depositor,
enforceable in accordance with the terms of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance of
its obligations hereunder by the Depositor will not conflict with any
provision of its certificate of incorporation or bylaws, or any law or
regulation to which the Depositor is subject, or conflict with, result
in a breach of or constitute a default under (or an event which with
notice or lapse of time or both would constitute a default under) any
of the terms, conditions or provisions of any agreement or instrument
to which the Depositor is a party or by which it is bound, or any
order or decree applicable to the Depositor, or result in the creation
or imposition of any lien on any of the Depositor's assets or
property, which would materially and adversely affect the ability of
the Depositor to carry out the transactions contemplated by this
Agreement. The Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor
of this Agreement;
(v) The certificate of incorporation of the Depositor provides that the
Depositor is permitted to engage in only the following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance and otherwise deal with (I) loans secured by first or
second mortgages, deeds of trust or similar liens on residential,
including single-family and multi-family, commercial or mixed
commercial and residential properties, shares issued by private
non-profit housing corporations, or manufactured housing
contracts, (II) any participation interest in, security (in bond
or pass-through form) or funding agreement based on, backed or
collateralized by, directly or indirectly, any of the foregoing
(the loans described in clause (A)(I) and the participation
interests, securities and funding agreements described in clause
(A)(II), collectively, "Mortgage Loans"), (III) receivables and
loan obligations, whether secured or unsecured, including, but
not limited to, retail automotive, truck or manufactured housing
installment sale contracts or loans or automotive, truck or
manufactured housing leases, consumer or commercial loans or
leases, credit card accounts, accounts receivable, corporate
receivables, trade receivables, trade bills, boat and
recreational vehicle loans, computer or other equipment loans or
leases, mobile home loans and pads, construction equipment,
dealer and floor plan financing notes, insurance policy loans,
medical and health care receivables, municipal and other
governmental leases, short-term notes secured by a lien on a
small business or all or part of its assets, and loans to
lesser-developed countries, (IV) any participation interest in,
security (in bond or pass-through form) or funding agreement
based on, backed or collateralized by, directly or indirectly,
any of the foregoing (the receivables and loans described in
clause (A)(III) and the participation interests, securities and
funding agreements described in clause (A)(IV), collectively,
"Receivables");
(B) to authorize and issue one or more series (each, a "Pass-Through
Series") of pass-through securities ("Certificates") pursuant to
pooling and servicing agreements (each, a "Pooling and Servicing
Agreement"), each of which Pass-Through Series (I) represents an
ownership interest in Mortgage Loans or Receivables, related
property and/or collections in respect thereof and (II) may be
structured to contain one or more classes of Certificates, each
class having the characteristics specified in the related Pooling
and Servicing Agreement, and to acquire, own, hold, sell,
transfer, assign, pledge, finance or refinance one or more
Certificates or classes of Certificates of any Pass-Through
Series;
(C) to establish one or more trusts ("Trusts") to issue, acquire,
own, and hold one or more series (each, a "Bond Series") of debt
obligations ("Bonds"), each issued pursuant to an indenture
("Indenture"), each of which bond series (I) is collateralized by
Mortgage Loans, receivables and any supplemental collateral (the
"Supplemental Collateral"; Mortgage Loans, Receivables and
Supplemental Collateral, collectively, the "Collateral") and/or
related property and/or collections in respect thereof and (II)
may be structured to contain one or more classes of Bonds, each
class having the characteristics specified in the related
Indenture, and to acquire, own, hold, sell, transfer, assign,
pledge, finance or refinance one or more Bonds or classes of
Bonds of any Bond Series; provided, however, that the Bonds of
any Bond Series have been rated in one of the two highest rating
categories by one or more nationally recognized statistical
rating agencies and, provided further, that the Bonds of any Bond
Series other than the initial Bond Series issued by a Trust have
been rated in the same or a higher rating category by the
nationally recognized statistical rating agency or agencies that
rated the initial Bond Series issued by such Trust;
(D) to issue, acquire, assume, own, hold, sell, transfer, assign,
pledge and finance indebtedness that (I) is subordinated to the
Bonds; (II) is nonrecourse to the Depositor and the related Trust
other than to cash flow on the Collateral securing a Bond Series
issued by the related Trust in excess of amounts necessary to pay
holders of Bonds ("Bondholders") of such Bond Series; (III) does
not constitute a claim against the Depositor to the extent that
funds are insufficient to pay such indebtedness; and (IV) does
not result in a lowering or withdrawal of the rating or ratings
then assigned to the Bonds of any Bond Series issued by the Trust
issuing such subordinated indebtedness, as confirmed in writing
by the nationally recognized statistical rating agency or
agencies rating such Bond Series;
(E) (I) to establish one or more Trusts to engage in any one or more
of the activities described in (A) and (D) above, each of which
Trusts and any Trust formed to engage in one or more of the
activities described in (C) above may deliver to the Depositor
Certificates ("Trust Certificates") representing the ownership
interest in the assets of such Trust, (II) to acquire, own, hold,
sell, transfer, assign, pledge, finance, and otherwise deal with
any or all of the Trust Certificates in any Trust that it
establishes and (III) to act as settlor or depositor of such
Trusts and to invest in or sell Trust Certificates; and
(F) to engage in any other acts and activities and to exercise any
powers permitted to corporations under the laws of the State of
Delaware which are incidental to, or connected with, the
foregoing, and necessary, suitable or convenient to accomplish
any of the foregoing;
Capitalized terms defined in this clause (v) shall apply only to such
clause.
(vi) There is no action, suit or proceeding pending against the Depositor
in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
ability of the Depositor to carry out its obligations under this
Agreement; and
(vii)The Trustee, if not the owner of the related Mortgage Loan, will have
a valid and perfected security interest of first priority in each of
the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to each
Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee, the
Note and the Mortgage were not subject to an assignment or pledge, and
the Depositor had good title to, and was the sole owner of, the
Mortgage Loan and had full right to transfer and sell the Mortgage
Loan to the Trustee free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest;
(ii) The Depositor is transferring such Mortgage Loan free and clear of any
and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iii)The related Assignment of Mortgage constitutes the legal, valid and
binding assignment of such Mortgage from the Depositor to the Trustee,
and any related Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding assignment from the
Depositor to the Trustee;
(iv) No claims have been made by the Depositor under the lender's title
insurance policy, and the Depositor has not done, by act or omission,
anything which would impair the coverage of such lender's title
insurance policy;
(v) All of the representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Purchase and Sale Agreement are true
and correct as of the Cut-off Date;
(vi) (1) Such Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2)
either (i) substantially all of the proceeds of such Mortgage Loan
were used to acquire or improve or protect an interest in real
property that, at the origination date, was the only security for the
Mortgage Loan (in the case of a Mortgage Loan that has not been
modified in a manner that constituted a deemed exchange under Section
1001 of the Code at a time when the Mortgage Loan was not in default
or default with respect thereto was not reasonably foreseeable) or
(ii) the fair market value of such real property was at least equal to
80% of the principal amount of the Mortgage Loan (a) at origination
(or, if the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that for purposes
of this clause (ii) the fair market value of the real property
interest must first be reduced by (A) the amount of any lien on the
real property interest that is senior to the Mortgage Loan (unless
such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) of this clause (ii) shall be made
on an aggregate basis) and (B) a proportionate amount of any lien that
is in parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan, in
which event the computation described in (a) and (b) of this clause
(ii) shall be made on an aggregate basis); and
(vii)The information set forth with respect to such Mortgage Loan on the
Mortgage Loan Schedule is true and correct in all material respects as
of the dates respecting which such information is given, or if no date
is specified, as of the Cut-off Date.
(c) It is understood and agreed that the representations and warranties set
forth in this Section 2.03 shall survive delivery of the respective Mortgage
Files to the Trustee until the termination of this Agreement, and shall inure to
the benefit of the Certificateholders and the Servicer.
(d) Upon discovery by the Custodian, the Servicer, the Special Servicer or
the Trustee of a breach of the representation and warranty set forth in Section
2.03(b)(vi) or that any Mortgage Loan otherwise fails to constitute a Qualified
Mortgage, such Person shall give prompt notice thereof to the Depositor and the
Depositor shall correct such condition or repurchase or cause the Mortgage Loan
Seller to repurchase such Mortgage Loan at the Repurchase Price within 90 days
of discovery of such failure; it being understood and agreed that none of such
Persons has an obligation to conduct any investigation with respect to such
matters. It is understood and agreed that the obligations of the Depositor set
forth in this Section 2.03(d) to cure or repurchase a Mortgage Loan which fails
to constitute a Qualified Mortgage shall be the sole remedies available to the
Trustee respecting, in the case of a Mortgage Loan, a breach of a representation
or warranty set forth in Section 2.03(b)(vi).
(e) Upon discovery by the Custodian, the Servicer, the Special Servicer or
the Trustee of a breach of any representation or warranty of the Mortgage Loan
Seller in the Mortgage Loan Purchase and Sale Agreement with respect to any
Mortgage Loan, or that any document required to be included in the Mortgage File
does not conform to the requirements of Section 2.01, such Person shall give
prompt notice thereof to the Mortgage Loan Seller and the Mortgage Loan Seller
shall, to the extent the Mortgage Loan Seller is obligated to cure or repurchase
the related Mortgage Loan under the terms of the Mortgage Loan Purchase and Sale
Agreement, either cure such breach or repurchase said Mortgage Loan at the
Repurchase Price within 90 days of the receipt of notice of the breach as
provided in the Mortgage Loan Purchase and Sale Agreement; it being understood
and agreed that none of the Custodian, the Servicer and the Trustee has an
obligation to conduct any investigation with respect to such matters (except, in
the case of the Mortgage Files, to the extent provided in Section 2.01);
provided, however, that in the event that such breach is capable of being cured
as determined by the Servicer or the Special Servicer, as applicable, but not
within such 90 day period and the Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such breach within such 90 day period
(other than a breach that is also a breach of Section 2.03(b)(vi) or 2.03(d)),
the Mortgage Loan Seller shall have an additional 90 days to complete such cure;
provided, further, that with respect to such additional 90 day period the
Mortgage Loan Seller shall have delivered an officer's certificate to the
Trustee and the Servicer setting forth the reason such breach is not capable of
being cured within the initial 90 day period and what actions the Mortgage Loan
Seller is pursuing in connection with the cure thereof and stating that the
Mortgage Loan Seller anticipates that such breach will be cured within the
additional 90 day period; and, provided, further, that in the event the Mortgage
Loan Seller fails to cure such breach within such additional 90-day period, the
Repurchase Price shall include interest on any Advances made in respect of the
related Mortgage Loan during such period.
(f) Upon receipt by the Servicer from the Depositor or Mortgage Loan Seller
of the Repurchase Price for the repurchased Mortgage Loan, the Servicer shall
deposit such amount in the Collection Account, and the Trustee, pursuant to
Section 3.11, shall, upon receipt of a certificate of a Servicing Officer
certifying as to the receipt by the Servicer of the Repurchase Price and the
deposit of the Repurchase Price into the Collection Account pursuant to this
Section 2.03(f), release or cause to be released to the Depositor or the
Mortgage Loan Seller the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by the Servicer to vest in the
Depositor or the Mortgage Loan Seller any Mortgage Loan released pursuant
hereto, and any rights of the Depositor in, to and under the Mortgage Loan
Purchase and Sale Agreement as it related to such Mortgage Loan that were
initially transferred to the Trust Fund under Section 2.01, and if applicable
any rights of the Mortgage Loan Seller or Depositor in, to and under the related
Original Purchase Agreement as it related to such Mortgage Loan that were
initially transferred to the Trust Fund under Section 2.01, and the Trustee and
the Servicer shall have no further responsibility with regard to such Mortgage
File.
(g) In the event that the Mortgage Loan Seller incurs any expense in
connection with curing a breach of a representation or warranty pursuant to
Section 2.03(e) which also constitutes a default under the related Mortgage
Loan, the Mortgage Loan Seller shall have a right, subrogated to that of the
Trustee, as successor to the mortgagee, to recover the amount of such expenses
from the related Borrower. The Servicer shall use reasonable efforts in
recovering, or assisting the Mortgage Loan Seller in recovering, from the
related Borrower the amount of any such expenses.
(h) In the event that any litigation is commenced which alleges facts
which, in the judgment of the Depositor, could constitute a breach of any of the
Depositor's representations and warranties relating to the Mortgage Loans, the
Depositor hereby reserves the right to conduct the defense of such litigation at
its expense.
(i) If for any reason the Mortgage Loan Seller or the Depositor fails to
fulfill its obligations under this Section 2.03 with respect to any Mortgage
Loan, the Servicer shall use reasonable efforts in enforcing any obligation of
the Originator to cure or repurchase such Mortgage Loan under the terms of the
related Original Purchase Agreement.
SECTION 2.04. Representations, Warranties and Covenants of the Servicer and
Special Servicer.
(a) The Servicer, as Servicer, and if it is also the Special Servicer, as
the Special Servicer, hereby represents, warrants and covenants that as of the
Closing Date or as of such date specifically provided herein:
(i) The Servicer is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Texas and has all
licenses necessary to carry on its business as now being conducted or
is in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to comply with its duties
and responsibilities hereunder with respect to each Mortgage Loan in
accordance with the terms of this Agreement;
(ii) The Servicer has the full corporate power, authority and legal right
to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Servicer
and its performance and compliance with the terms of this Agreement
will not violate the Servicer's charter or by-laws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Servicer
is a party or which may be applicable to the Servicer or any of its
assets;
(iii)This Agreement has been duly and validly authorized, executed and
delivered by the Servicer and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of the Servicer, enforceable against it in
accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and all requisite corporate action
has been taken by the Servicer to make this Agreement and all
agreements contemplated hereby valid and binding upon the Servicer in
accordance with their terms;
(iv) The Servicer is not in violation of, and the execution and delivery of
this Agreement by the Servicer and its performance and compliance with
the terms of this Agreement will not constitute a violation with
respect to, any order or decree of any court binding on the Servicer
or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such
event, would have consequences that would materially and adversely
affect the condition (financial or otherwise) or operation of the
Servicer or its properties or impair the ability of the Trust Fund to
realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer which, either in any one instance or
in the aggregate, would result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right, or would, if
adversely determined, materially impair the ability of the Servicer,
to carry on its business substantially as now conducted, or in any
material liability on the part of the Servicer, or which would draw
into question the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with the obligations
of the Servicer contemplated herein, or which would be likely to
impair materially the ability of the Servicer to perform under the
terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or registration or
filing with, or notice to any court or governmental agency or body, is
required for the execution, delivery and performance by the Servicer
of or compliance by the Servicer with this Agreement, or if required,
such approval has been obtained prior to the Cut-off Date.
(b) The Special Servicer, as Special Servicer, hereby represents, warrants
and covenants that as of the Closing Date or as of such date specifically
provided herein:
(i) The Special Servicer is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Maryland
and has all licenses necessary to carry on its business as now being
conducted or will be in compliance with the laws of each state in
which any Mortgaged Property is located to the extent necessary to
comply with its duties and responsibilities hereunder with respect to
each Mortgage Loan in accordance with the terms of this Agreement,
provided, that the breach of such representation, warranty and
covenant shall have no effect unless such breach has a material
adverse effect on the ability of the Special Servicer to fulfill its
obligations hereunder;
(ii) The Special Servicer has the full power, authority and legal right to
execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Special
Servicer and its performance and compliance with the terms of this
Agreement will not violate the Special Servicer's charter or by-laws
or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material contract, agreement or other instrument to
which the Special Servicer is a party or which may be applicable to
the Special Servicer or any of its assets;
(iii)This Agreement has been duly and validly authorized, executed and
delivered by the Special Servicer and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of the Special Servicer,
enforceable against it in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and all requisite
corporate action has been taken by the Special Servicer to make this
Agreement and all agreements contemplated hereby valid and binding
upon the Special Servicer in accordance with their terms;
(iv) The Special Servicer is not in violation of, and the execution and
delivery of this Agreement by the Special Servicer and its performance
and compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court binding on
the Special Servicer or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, or result in the
creation or imposition of any lien, charge or encumbrance which, in
any such event, would have consequences that would materially and
adversely affect the condition (financial or otherwise) or operation
of the Special Servicer or its properties or impair the ability of the
Trust Fund to realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Special Servicer which, either in any one
instance or in the aggregate, would result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Special Servicer, or in any material impairment of the
right, or would, if adversely determined, materially impair the
ability of the Special Servicer, to carry on its business
substantially as now conducted, or in any material liability on the
part of the Special Servicer, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action
taken or to be taken in connection with the obligations of the Special
Servicer contemplated herein, or which would be likely to impair
materially the ability of the Special Servicer to perform under the
terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or registration or
filing with, or notice to any court or governmental agency or body, is
required for the execution, delivery and performance by the Special
Servicer of or compliance by the Special Servicer with this Agreement,
or if required, such approval has been obtained prior to the Cut-off
Date.
(c) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Depositor and
the Servicer or Special Servicer, as the case may be. Upon discovery by the
Depositor, the Servicer, Special Servicer or a Responsible Officer of the
Trustee (or upon written notice thereof from any Certificateholder) of a breach
of any of the representations and warranties set forth in this Section which
materially and adversely affects the interests of the Certificateholders, the
Servicer, Special Servicer or the Trustee in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
hereto and the Mortgage Loan Seller.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of Lower-
Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
Anchorage Participation and the delivery of the Mortgage Files to the Custodian
(to the extent the documents constituting the Mortgage Files are actually
delivered to the Custodian), subject to the provisions of Section 2.01 and
Section 2.02 and, concurrently with such delivery, (i) acknowledges the issuance
of and hereby declares that it holds the Lower-Tier Regular Interests on behalf
of the Upper-Tier REMIC and the Holders of the Regular Certificates and the
Class R Certificates and (ii) has caused to be executed and caused to be
authenticated and delivered to or upon the order of the Depositor, or as
directed by the terms of this Agreement, Class A-1A, Class A-1B, Class A- 1C,
Class A-CS1, Class A-CS2, Class A-1D, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4 , Class B-4H, Class V-1, Class
V-2, Class R and Class LR Certificates in authorized denominations, in each case
registered in the names set forth in such order or so directed in this Agreement
and duly authenticated by the Authenticating Agent, which Certificates
(described in the preceding clause (ii)) and Lower Tier Regular Interests
evidence ownership of the entire Trust Fund.
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class A-1A-L, Class A-1B-L, Class A-1C-L, Class A-1D-L, Class
A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class B-1-L, Class B-2-L, Class
B-3-L, Class B-4-L and Class B-4H-L Interests are hereby designated as "regular
interests" in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of
the Code, and the Class LR Certificates are hereby designated as the sole Class
of "residual interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(2) of the Code. The Class A-1A, Class A-1B, Class A-1C, Class A-CS1,
Class A-CS2, Class A-1D, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4 and Class B-4H Certificates are hereby
designated as "regular interests" in the Upper-Tier REMIC within the meaning of
Section 860G(a)(1) of the Code and the Class R Certificates are hereby
designated as the sole Class of "residual interests" in the Upper-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Closing Date is hereby
designated as the "Startup Day" of the Lower-Tier REMIC and the Upper-Tier REMIC
within the meaning of Section 860G(a)(9) of the Code. The "latest possible
maturity date" of the Lower-Tier Regular Interests and the Regular Certificates
for purposes of Section 860G(a)(1) of the Code is the Scheduled Final
Distribution Date.
(b) The Class V-1 Certificates represent pro rata undivided beneficial
interests in the Default Interest subject to the liability of the Trust Fund to
pay interest on Advances at the Advance Rate. The Class V-2 Certificates
represent beneficial pro rata undivided interests in the Excess Interest. The
Class V-1 and Class V-2 Certificates do not represent regular or residual
interests in either the Upper-Tier REMIC or the Lower-Tier REMIC.
(c) None of the Depositor, the Trustee, the Servicer, the Fiscal Agent or
the Special Servicer shall enter into any arrangement by which the Trust Fund
will receive a fee or other compensation for services other than as specifically
contemplated herein.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the Mortgage
Loans.
(a) The Servicer and the Special Servicer, each as an independent
contractor servicer, shall service and administer the Mortgage Loans on behalf
of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with the Servicing Standard.
The Servicer's or Special Servicer's liability for actions and omissions in
its capacity as Servicer or Special Servicer, as the case may be, hereunder is
limited as provided herein (including, without limitation, pursuant to Section
6.03 hereof). To the extent consistent with the foregoing and subject to any
express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans. Subject only to the
Servicing Standard, the Servicer and Special Servicer shall have full power and
authority, acting alone or through sub-servicers (subject to paragraph (c) of
this Section 3.01 and to Section 3.02), to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
consistent with the Servicing Standard and, in its reasonable judgment, in the
best interests of the Certificateholders, including, without limitation, with
respect to each Mortgage Loan, to prepare, execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Mortgaged Property and related collateral; (ii) any
modifications, waivers, consents or amendments to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties. Subject to Section 3.11, the Trustee shall,
upon the receipt of a written request of a Servicing Officer, execute and
deliver to the Servicer and Special Servicer any powers of attorney and other
documents prepared by the Servicer and Special Servicer and necessary or
appropriate (as certified in such written request) to enable the Servicer and
Special Servicer to carry out their servicing and administrative duties
hereunder.
(b) Unless otherwise provided in the related Note, the Servicer shall apply
any partial Principal Prepayment received on a Mortgage Loan on a date other
than a Due Date to the principal balance of such Mortgage Loan as of the Due
Date immediately following the date of receipt of such partial Principal
Prepayment. Unless otherwise provided in the related Note, the Servicer shall
apply any amounts received on U.S. Treasury obligations (which shall not be
redeemed by the Servicer prior to the maturity thereof) in respect of a Mortgage
Loan being defeased pursuant to its terms to the principal balance of and
interest on such Mortgage Loan as of the Due Date immediately following the
receipt of such amounts.
(c) Each of the Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, including, with respect to the Special
Servicer, those obligations for which it is paid the Additional Servicing Fee,
as provided herein, provided, that (i) any such agreement shall be consistent
with the provisions of this Agreement and (ii) no sub-servicer retained by the
Servicer or the Special Servicer, as applicable, shall grant any modification,
waiver or amendment to any Mortgage Loan without the approval of the Servicer or
the Special Servicer, as applicable, which approval shall be given or withheld
in accordance with the procedures set forth in Section 3.30 (or the definition
of Minimum Defaulted Monthly Payment), and (iii) such agreement shall be
consistent with the Servicing Standard. Any such sub-servicing agreement may
permit the sub-servicer to delegate its duties to agents or subcontractors so
long as the related agreements or arrangements with such agents or
subcontractors are consistent with the provisions of this Section 3.01(c).
Any sub-servicing agreement entered into by the Servicer or the Special
Servicer, as applicable, shall provide that it may be assumed or terminated by
the Trustee or the Servicer, respectively, if the Trustee or the Servicer,
respectively, has assumed the duties of the Servicer or the Special Servicer,
respectively, or any successor Servicer or Special Servicer, as applicable,
without cost or obligation to the assuming or terminating party or the Trust
Fund, upon the assumption by such party of the obligations of the Servicer or
the Special Servicer, as applicable, pursuant to Section 7.02.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Servicer or the Special Servicer, as applicable, and such
sub-servicer alone, and the Trustee and the Certificateholders shall not be
deemed parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the sub-servicer, except as set forth in Section
3.01(d).
(d) If the Trustee or any successor Servicer assumes the obligations of the
Servicer, or if the Servicer or any successor Special Servicer assumes the
obligations of the Special Servicer, in each case in accordance with Section
7.02, the Trustee, the Servicer or such successor, as applicable, to the extent
necessary to permit the Trustee, the Servicer or such successor, as applicable,
to carry out the provisions of Section 7.02, shall, without act or deed on the
part of the Trustee, the Servicer or such successor, as applicable, succeed to
all of the rights and obligations of the Servicer or the Special Servicer, as
applicable, under any sub-servicing agreement entered into by the Servicer or
the Special Servicer, as applicable, pursuant to Section 3.01(c), subject to the
right of termination by the Trustee set forth in Section 3.01(c). In such event,
the Trustee, the Servicer or the successor Servicer or the Special Servicer, as
applicable, shall be deemed to have assumed all of the Servicer's or the Special
Servicer's interest, as applicable, therein (but not any liabilities or
obligations in respect of acts or omissions of the Servicer or the Special
Servicer, as applicable, prior to such deemed assumption) and to have replaced
the Servicer or the Special Servicer, as applicable, as a party to such
sub-servicing agreement to the same extent as if such sub-servicing agreement
had been assigned to the Trustee, the Servicer or such successor Servicer or
successor Special Servicer, as applicable, except that the Servicer or the
Special Servicer, as applicable, shall not thereby be relieved of any liability
or obligations under such sub-servicing agreement that accrued prior to the
succession of the Trustee, the Servicer or the successor Servicer or successor
Special Servicer, as applicable.
In the event that the Trustee, the Servicer or any successor Servicer or
Special Servicer, as applicable, assumes the servicing obligations of the
Servicer or the Special Servicer, as applicable, upon request of the Trustee,
the Servicer or such successor Servicer or Special Servicer, as applicable, the
Servicer or Special Servicer shall at its own expense (except in the event that
the Servicer is terminated pursuant to Section 6.04(c), in which event, at the
expense of the Certificateholders effecting such termination) deliver to the
Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, all documents and records relating to any sub-servicing agreement
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and will otherwise use its best
efforts to effect the orderly and efficient transfer of any sub-servicing
agreement to the Trustee, the Servicer or the successor Servicer or Special
Servicer, as applicable.
SECTION 3.02. Liability of the Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer or Special
Servicer and any Person acting as sub-servicer (or its agents or subcontractors)
or any reference to actions taken through any Person acting as sub-servicer or
otherwise, the Servicer or Special Servicer, as applicable, shall remain
obligated and primarily liable to the Trustee and Certificateholders for the
servicing and administering of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such sub-servicing agreements or arrangements or by virtue of
indemnification from the Depositor or any other Person acting as sub-servicer
(or its agents or subcontractors) to the same extent and under the same terms
and conditions as if the Servicer or Special Servicer, as applicable, alone were
servicing and administering the Mortgage Loans. Each of the Servicer and the
Special Servicer shall be entitled to enter into an agreement with any
sub-servicer providing for indemnification of the Servicer or Special Servicer,
as applicable, by such sub-servicer, and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification, but no such agreement
for indemnification shall be deemed to limit or modify this Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Servicer or the Special Servicer, as applicable, shall use
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and shall
follow the Servicing Standard with respect to such collection procedures. The
Special Servicer shall use its reasonable efforts to collect income statements
and rent rolls from Borrowers as required by the Loan Documents and the terms
hereof and shall provide copies thereof to the Servicer as provided herein. The
Servicer shall provide reasonable advance notice to the Special Servicer and
Borrowers of Balloon Payments coming due. Consistent with the foregoing, the
Servicer or Special Servicer, as applicable, may in its discretion waive any
late payment charge in connection with any delinquent Monthly Payment or Balloon
Payment with respect to any Mortgage Loan. In addition, the Servicer shall be
entitled to take such actions with respect to the collection of payments on the
Mortgage Loans as are permitted or required under Section 3.28 hereof.
(b) In the event that the Servicer receives, or receives notice from the
related Borrower that it will be receiving, Excess Interest in any Collection
Period, the Servicer or Special Servicer, as applicable, will promptly notify
the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments and other similar
items that are or may become a lien on the related Mortgaged Property and the
status of insurance premiums payable with respect thereto. From time to time,
the Servicer shall (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case employing for such purpose Escrow Payments as allowed under the
terms of the related Mortgage Loan. If a Borrower fails to make any such payment
on a timely basis or collections from the Borrower are insufficient to pay any
such item before the applicable penalty or termination date, the Servicer shall
advance the amount of any shortfall as a Property Advance unless the Servicer
determines in its good faith business judgment that such Advance would be a
Nonrecoverable Advance. The Servicer shall be entitled to reimbursement of
Advances, with interest thereon at the Advance Rate, that it makes pursuant to
the preceding sentence from amounts received on or in respect of the related
Mortgage Loan respecting which such Advance was made or if such Advance has
become a Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Servicer in effecting the payment of taxes
and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
(b) The Servicer shall segregate and hold all funds collected and received
pursuant to any Mortgage Loan constituting Escrow Payments separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more segregated custodial accounts (each, an "Escrow Account") into which
all Escrow Payments shall be deposited within one (1) Business Day after
receipt. The Servicer shall also deposit into each Escrow Account any amounts
representing losses on Permitted Investments pursuant to Section 3.07(b) and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Escrow Accounts shall be Eligible Accounts (except to the extent
the related Mortgage Loan requires it to be held in an account that is not an
Eligible Account) and shall be entitled "AMRESCO Management, Inc., as Servicer,
in trust for LaSalle National Bank, as Trustee in trust for Holders of Asset
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1996-D3, and Various Borrowers". Withdrawals from an Escrow Account may
be made by the Servicer only:
(i) to effect timely payments of items constituting Escrow Payments for
the related Mortgage;
(ii) to transfer funds to the Collection Account to reimburse the Servicer,
the Trustee or the Fiscal Agent, as applicable, for any Advance
relating to Escrow Payments, but only from amounts received with
respect to the related Mortgage Loan which represent late collections
of Escrow Payments thereunder;
(iii)for application to the restoration or repair of the related Mortgaged
Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of
this Agreement;
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Borrower under law
or by the terms of the Mortgage Loan, or otherwise to the Servicer;
and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account; Distribution Account; Upper-Tier
Distribution Account; Default Interest Distribution Account;
and Excess Interest Distribution Account.
(a) The Servicer shall establish and maintain the Collection Account in the
Trustee's name, for the benefit of the Certificateholders and the Trustee as the
Holder of the Lower-Tier Regular Interests. The Collection Account shall be
established and maintained as an Eligible Account. The Servicer shall deposit or
cause to be deposited in the Collection Account within one Business Day
following receipt the following payments and collections received or made by it
on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans, including
the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments and all Prepayment
Premiums;
(iii)any amounts required to be deposited pursuant to Section 3.07(b), in
connection with net losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant to Section
3.17(b) and all Net Insurance Proceeds and Net Liquidation Proceeds;
(v) any amounts received from Borrowers which represent recoveries of
Property Protection Expenses, to the extent not permitted to be
retained by the Servicer or Special Servicer as provided herein;
(vi) any other amounts required by the provisions of this Agreement to be
deposited into the Collection Account by the Servicer or Special
Servicer, including, without limitation, proceeds of any repurchase of
a Mortgage Loan pursuant to Sections 2.03(d) and (e) hereof; and
(vii)any Servicer Prepayment Interest Shortfalls for the next Distribution
Date into the Collection Account on the Servicer Remittance Date.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (subject to
Section 3.12 hereof), Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Servicer
and, to the extent permitted by applicable law, the Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans. In the event that the Servicer deposits in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) The Trustee shall establish and maintain the Distribution Account in
the name of the Trustee, in trust for the benefit of the Certificateholders and
the Trustee as the Holder of the Lower-Tier Regular Interests. The Distribution
Account shall be established and maintained as an Eligible Account.
(c) The Trustee shall establish and maintain the Upper-Tier Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall withdraw from the Distribution Account and deposit in the
Upper-Tier Distribution Account on or before such date the amount of Available
Funds (including P&I Advances) and Prepayment Premiums to be distributed in
respect of the Lower-Tier Regular Interests pursuant to Section 4.01 hereof on
such date.
(d) Prior to the Servicer Remittance Date relating to the Collection
Period, if any, in which Default Interest is received, the Trustee shall
establish and maintain the Default Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Holders of the Class V-1
Certificates. The Default Interest Distribution Account shall be established and
maintained as an Eligible Account. On or before the Servicer Remittance Date
related to each Distribution Date, the Servicer shall remit to the Trustee for
deposit in the Default Interest Distribution Account an amount equal to (i) the
amount of the aggregate Default Interest received during the preceding
Collection Period, minus (ii) any portions thereof withdrawn from the Collection
Account pursuant to clause (iii) of Section 3.06 (such amount, if any, the "Net
Default Interest" for such Distribution Date).
(e) Prior to the Servicer Remittance Date relating to the Collection
Period, if any, in which Excess Interest is received, the Trustee shall
establish and maintain the Excess Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Holders of the Class V-2
Certificates. The Excess Interest Distribution Account shall be established and
maintained as an Eligible Account. On or before the Servicer Remittance Date
related to the applicable Distribution Date, the Servicer shall remit to the
Trustee for deposit in the Excess Interest Distribution Account an amount equal
to the Excess Interest received during the applicable Collection Period.
Following the distribution of Excess Interest to Certificateholders on the first
Distribution Date after which there are no longer any Mortgage Loans outstanding
which pursuant to their terms could pay Excess Interest, the Trustee shall
terminate the Excess Interest Distribution Account.
(f) Funds in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Default Interest Distribution Account and
the Excess Interest Distribution Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.07. The Servicer
shall give written notice to the Trustee of the location and account number of
the Collection Account and shall notify the Trustee in writing prior to any
subsequent change thereof.
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Servicer may make withdrawals from the Collection Account only as
described below (the order set forth below not constituting an order of priority
for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account, the
Default Interest Distribution Account, the Interest Reserve Account,
and the Excess Interest Distribution Account, the amounts required to
be deposited in the Distribution Account, the Default Interest
Distribution Account, the Interest Reserve Account, and the Excess
Interest Distribution Account pursuant to Sections 4.06, 3.05(c),
3.05(d), 3.27(a) and 3.05(e);
(ii) to pay or reimburse the Trustee, the Fiscal Agent, the Servicer and
the Special Servicer for Advances (provided, that the Trustee and
Fiscal Agent shall have priority with respect to such payment or
reimbursement), the Servicer's right to reimburse any such Person
pursuant to this clause (ii) being limited to either (x) any
collections on or in respect of the particular Mortgage Loan or REO
Property with respect to which such Advance was made, (y) with respect
to P&I Advances, any Subordinate Class Advance Amounts with respect to
the related Distribution Date as provided in Section 4.06(d), or (z)
any other amounts in the Collection Account in the event that such
Advances have been deemed to be Nonrecoverable Advances or are not
reimbursed from recoveries in respect of the related Mortgage Loan or
REO Property after a Final Recovery Determination;
(iii)(A) to pay to the Servicer, the Trustee or the Fiscal Agent the
Advance Interest Amount relating to P&I Advances (to the extent not
reimbursed from Default Interest), and (B) to pay to the Servicer,
Special Servicer, Trustee or Fiscal Agent any Advance Interest Amounts
not relating to any P&I Advances (provided that in the case of both
(A) and (B), the Trustee and the Fiscal Agent shall have priority with
respect to such payments);
(iv) to pay on or before each Servicer Remittance Date to the Servicer and
the Special Servicer, as applicable, as compensation, the aggregate
unpaid Servicing Compensation and Special Servicing Compensation,
respectively, in respect of the immediately preceding month, to be
paid, in the case of the Servicing Fee and Additional Servicing Fee,
from interest received on the related Mortgage Loan, and to pay from
time to time to the Servicer in accordance with Section 3.07(b) any
interest or investment income earned on funds deposited in the
Collection Account (The Servicer may rely on a certification of the
Special Servicer as to amounts of Special Servicing Compensation to be
withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee
Fee in respect of the immediately preceding month to be paid from
interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the
Mortgage Loan Seller or other Originator, as the case may be, with
respect to each Mortgage Loan or REO Property that has previously been
purchased or repurchased by it pursuant to Section 2.03(d), Section
2.03(e), Section 3.18 or Section 9.01, all amounts received thereon
during the related Collection Period and subsequent to the date as of
which the amount required to effect such purchase or repurchase was
determined;
(vii)to the extent not reimbursed or paid pursuant to any other clause of
this Section 3.06, to reimburse or pay the Servicer, the Trustee, the
Special Servicer, the Depositor or the Fiscal Agent, as applicable,
for unpaid Servicing Fees, Special Servicing Compensation and other
unpaid items incurred by such Person pursuant to the second sentence
of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section
3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth
paragraph of Section 3.22, Section 6.03, Section 7.04, Section
8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision
of this Agreement pursuant to which such Person is entitled to
reimbursement or payment from the Trust Fund, in each case only to the
extent reimbursable under such Section, it being acknowledged that
this clause (vii) shall not be deemed to modify the substance of any
such Section, including the provisions of such Section that set forth
the extent to which one of the foregoing Persons is or is not entitled
to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined by the
Trustee to be necessary to pay any applicable federal, state or local
taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under
the circumstances and to the extent described in Section 4.05;
(ix) to pay to the participant or participants (the "Other Participant") in
the Anchorage Participation, other than the Trustee as assignee of the
Depositor (as "Lead Lender" under the Anchorage Participation
Agreement), the amount of the Monthly Payment to which the Other
Participant is entitled under the Anchorage Participation Agreement;
(x) to withdraw any amount deposited into the Collection Account that was
not required to be deposited therein; and
(xi) to clear and terminate the Collection Account pursuant to Section
9.01.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account pursuant to subclauses (ii)-(vii) above.
The Servicer shall pay to the Trustee, the Fiscal Agent or the Special
Servicer from the Collection Account (to the extent permitted by clauses
(i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Servicer may rely conclusively on any such certificate
and shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall
in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Compensation (including investment income), or Trustee
Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Servicer or the
Special Servicer, as applicable) and any federal, state or local taxes imposed
on either the Upper-Tier REMIC or Lower-Tier REMIC.
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Lock-Box Accounts, the Cash Collateral Accounts,
the Interest Reserve Account and the Reserve Accounts.
(a) The Servicer (or with respect to any REO Account, the Special Servicer,
or with respect to the Interest Reserve Account, Nomura Securities
International, Inc.) may direct any depository institution maintaining the
Collection Account, any Borrower Accounts (subject to the second succeeding
sentence), the Interest Reserve Account and any REO Account (each, for purposes
of this Section 3.07, an "Investment Account"), to invest the funds in such
Investment Account in one or more Permitted Investments that bear interest or
are sold at a discount, and that mature, unless payable on demand, no later than
the Business Day preceding the date on which such funds are required to be
withdrawn from such Investment Account pursuant to this Agreement. Any direction
by the Servicer, the Special Servicer or by Nomura Securities International,
Inc., to invest funds on deposit in an Investment Account shall be in writing
and shall certify that the requested investment is a Permitted Investment which
matures at or prior to the time required hereby or is payable on demand. In the
case of any Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve
Account (the "Borrower Accounts"), the Servicer shall act upon the written
request of the related Borrower or Manager to the extent the Servicer is
required to do so under the terms of the respective Mortgage Loan or related
documents, provided that in the absence of appropriate written instructions from
the related Borrower or Manager meeting the requirements of this Section 3.07,
the Servicer shall have no obligation to, but will be entitled to, direct the
investment of funds in such accounts in Permitted Investments. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such) or in the name of a nominee of the Trustee.
The Trustee shall have sole control (except with respect to investment direction
which shall be in the control of the Servicer (or Nomura Securities
International, Inc., with respect to the Interest Reserve Account, or the
Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Servicer), together with
any document of transfer, if any, necessary to transfer title to such investment
to the Trustee or its nominee. The Trustee shall have no responsibility or
liability with respect to the investment directions of the Servicer, the Special
Servicer or Nomura Securities International, Inc. or any losses resulting
therefrom, whether from Permitted Investments or otherwise. The Servicer shall
have no responsibility or liability with respect to the investment directions of
Nomura Securities International, Inc., the Special Servicer, any Borrower or
Manager or any losses resulting therefrom, whether from Permitted Investments or
otherwise. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Servicer (or the
Special Servicer or Nomura Securities International, Inc., as applicable) shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment
may otherwise mature hereunder in an amount equal to the lesser of (1)
all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Servicer (or the Special Servicer or Nomura
Securities International, Inc., as applicable) that such Permitted
Investment would not constitute a Permitted Investment in respect of
funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Servicer (except with respect
to the investment of funds deposited in (i) any Borrower Account, which shall be
for the benefit of the related Borrower to the extent required under the
Mortgage Loan or applicable law, (ii) any REO Account, which shall be for the
benefit of the Special Servicer or (iii) the Interest Reserve Account, which
shall be for the benefit of Nomura Securities International, Inc.) and, if held
in the Collection Account or REO Account shall be subject to withdrawal by the
Servicer or the Special Servicer, as applicable, in accordance with Section 3.06
or Section 3.17(b), as applicable, and if held in the Interest Reserve Account,
shall be subject to withdrawal by Nomura Securities International, Inc. pursuant
to written instructions. The Servicer (or with respect to any REO Account, the
Special Servicer or with respect to the Interest Reserve Account, Nomura
Securities International, Inc.) shall deposit from its own funds into the
Collection Account, any REO Account or the Interest Reserve Account, as
applicable, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss; provided, however, that
the Servicer, Special Servicer, or Nomura Securities International, Inc. as
applicable, may reduce the amount of such payment to the extent it forgoes any
investment income in such Investment Account otherwise payable to it. The
Servicer shall also deposit from its own funds in any Borrower Account the
amount of any loss incurred in respect of Permitted Investments, except to the
extent that amounts are invested for the benefit of the Borrower under the terms
of the Mortgage Loan or applicable law.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and upon the request of Holders of Certificates
representing greater than 50% of the Percentage Interests of any Class shall,
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings. In the
event the Trustee takes any such action, the Trust Fund shall pay or reimburse
the Trustee for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee in connection therewith. In the event
that the Trustee does not take any such action, the Servicer may take such
action at its own cost and expense.
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage.
(a) The Servicer on behalf of the Trustee, as mortgagee, shall cause the
related Borrower to maintain, to the extent required by each Mortgage Loan
(other than REO Mortgage Loans), and if the Borrower does not so maintain, shall
itself maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates, (i) fire
and hazard insurance with extended coverage on the related Mortgaged Property in
an amount which is at least equal to the lesser of (A) one hundred percent
(100%) of the then "full replacement cost" of the improvements and equipment,
(excluding foundations, footings and excavation costs), without deduction for
physical depreciation, and (B) the outstanding principal balance of the related
Mortgage Loan or such greater amount as is necessary to prevent any reduction in
such policy by reason of the application of co-insurance and to prevent the
Trustee thereunder from being deemed to be a co-insurer and provided such policy
shall include a "replacement cost" rider, (ii) insurance providing coverage
against 12 months (or such longer period as provided in the related Mortgage or
other loan document) of rent interruptions and (iii) such other insurance as is
required in the related Mortgage Loan. The Special Servicer shall maintain fire
and hazard insurance with extended coverage on each REO Property (subject to the
provisions of this Agreement concerning Nonrecoverable Advances) in an amount
which is at least equal to one hundred percent (100%) of the then "full
replacement cost" of the improvements and equipment (excluding foundations,
footings and excavation costs), without deduction for physical depreciation. If
the Special Servicer does not maintain the insurance described in the preceding
sentence or the required flood insurance described below, the Servicer shall, as
soon as practicable after receipt of notice of such failure, maintain such
insurance, and if the Servicer does not maintain such insurance, the insurance
required in the first sentence of this Section 3.08(a) or the required flood
insurance described below (if the related Borrower fails to maintain such
insurance), the Trustee shall, as soon as practicable after receipt of notice of
such failure, maintain such insurance and if the Trustee does not maintain such
insurance, the Fiscal Agent shall do so, provided that, in each such case, such
obligation will be subject to the provisions of this Agreement concerning
Nonrecoverable Advances. The Special Servicer shall maintain, with respect to
each REO Property (i) public liability insurance providing such coverage against
such risks as the Special Servicer determines, consistent with the related
Mortgage and the Servicing Standard, to be in the best interests of the Trust
Fund, (ii) insurance providing coverage against 24 months of rent interruptions
and (iii) such other insurance as was required pursuant to the terms of the
related Mortgage Loan. All insurance for an REO Property shall be from a
Qualified Insurer. Any amounts collected by the Servicer or the Special Servicer
under any such policies (other than amounts required to be applied to the
restoration or repair of the related Mortgaged Property or amounts to be
released to the Borrower in accordance with the terms of the related Mortgage)
shall be deposited into the Collection Account pursuant to Section 3.05, subject
to withdrawal pursuant to Section 3.06. Any cost incurred by the Servicer or the
Special Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no other
additional insurance other than flood insurance or earthquake insurance subject
to the conditions set forth below is to be required of any Borrower or to be
maintained by the Servicer other than pursuant to the terms of the related
Mortgage and pursuant to such applicable laws and regulations as shall at any
time be in force and as shall require such additional insurance. If the
Mortgaged Property (other than an REO Property) is located in a federally
designated special flood hazard area, the Servicer will use its best efforts to
cause the related Borrower to maintain, to the extent required by each Mortgage
Loan, and if the related Borrower does not so maintain, will itself obtain
(subject to the provisions of this Agreement concerning Nonrecoverable Advances)
flood insurance in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan and (ii) the maximum amount of such insurance required by the terms of the
related Mortgage and as is available for the related property under the national
flood insurance program (assuming that the area in which such property is
located is participating in such program). If an REO Property (i) is located in
a federally designated special flood hazard area or (ii) is related to a
Mortgage Loan pursuant to which earthquake insurance was in place at the time of
origination and continues to be available at commercially reasonable rates, the
Special Servicer will obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) flood insurance and/or earthquake insurance
in respect thereof providing substantially the same coverage as described in the
preceding sentences or, with respect to earthquake insurance, in the amount
required by the Mortgage Loan or, if not specified, in-place at origination. If
at any time during the term of this Agreement a recovery under a flood or fire
and hazard insurance policy in respect of an REO Property is not available but
would have been available if such insurance were maintained thereon in
accordance with the standards applied to Mortgaged Properties described herein,
the Special Servicer shall (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) either (i) immediately deposit into the
Collection Account from its own funds the amount that would have been recovered
or (ii) apply to the restoration and repair of the property from its own funds
the amount that would have been recovered, if such application would be
consistent with the Servicing Standard; provided, however, that the Special
Servicer shall not be responsible for any shortfall in insurance proceeds
resulting from an insurer's refusal or inability to pay a claim. In the case of
any insurance otherwise required to be maintained pursuant to this Section that
is not being so maintained because the Servicer or the Special Servicer, as
applicable, has determined that it is not available at commercially reasonable
rates, the Servicer or the Special Servicer, as applicable, shall deliver an
Officer's Certificate to the Trustee and each Rating Agency which details the
steps that were taken in seeking such insurance and the factors which led to the
determination that such insurance was not so available. Costs to the Servicer or
Special Servicer of maintaining insurance policies pursuant to this Section 3.08
shall be paid by the Servicer or Special Servicer as a Property Advance and
shall be reimbursable to the Servicer or Special Servicer with interest at the
Advance Rate, which reimbursement may be effected under Section 3.06(ii) or
(vii).
The Servicer (or the Special Servicer, with respect to the Specially
Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the
Trustee and the Certificateholders, claims under each related insurance policy
maintained pursuant to this Section 3.08(a) in a timely fashion in accordance
with the terms of such policy and to take such reasonable steps as are necessary
to receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee or the
Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as
loss payee.
(b) (I) If the Servicer or the Special Servicer, as applicable, obtains and
maintains a blanket insurance policy insuring against fire and hazard losses on
all of the Mortgaged Properties (other than REO Properties) as to which the
related Borrower has not maintained insurance required by the related Mortgage
Loan or on all of the REO Properties, as the case may be, it shall conclusively
be deemed to have satisfied its respective obligations concerning the
maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket
insurance policy shall be maintained with a Qualified Insurer. A blanket
insurance policy may contain a deductible clause, in which case the Servicer or
the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property a policy otherwise
complying with the provisions of Section 3.08(a), and (ii) there shall have been
one or more losses which would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account from its own funds
the amount not otherwise payable under the blanket policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard. In connection with its activities as Servicer or
the Special Servicer hereunder, as applicable, the Servicer or the Special
Servicer, respectively, agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy which it
maintains in a timely fashion in accordance with the terms of such policy and to
take such reasonable steps as are necessary to receive payment or permit
recovery thereunder.
(II) If the Servicer or the Special Servicer, as applicable, causes any
Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, such policy shall be issued by a Qualified Insurer and provide
no less coverage in scope and amount for such Mortgaged Property or REO Property
than the insurance required to be maintained pursuant to Section 3.08(a) in
which case the Servicer or Special Servicer shall conclusively be deemed to have
satisfied its respective obligations to maintain insurance pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case the Servicer
or the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property or REO Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under such policy because of
such deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a fidelity bond in
the form and amount that would meet the servicing requirements of prudent
institutional commercial mortgage lenders and loan servicers. The Servicer and
the Special Servicer each shall be deemed to have complied with this provision
if one of its respective Affiliates has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Servicer and the Special Servicer, as applicable. In addition, the Servicer and
the Special Servicer shall keep in force during the term of this Agreement a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its officers and employees in connection with its obligations to
service the Mortgage Loans hereunder in the form and amount that would meet the
servicing requirements of prudent institutional commercial mortgage lenders and
loan servicers. The Servicer shall cause each and every sub-servicer for it to
maintain, or cause to be maintained by any agent or contractor servicing any
Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and
omissions insurance policy which satisfy the requirements for the fidelity bond
and the errors and omissions policy to be maintained by the Servicer pursuant to
this Section 3.08(c). All fidelity bonds and policies of errors and omissions
insurance obtained under this Section 3.08(c) shall be issued by a Qualified
Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such sale or
other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer on behalf of the Trust Fund shall enforce such due-on-sale
clause and in connection therewith shall (x) accelerate payments thereon or (y)
withhold its consent to such an assumption to the extent permitted under the
terms of the related Mortgage Loan only if (x) such provision is exercisable
under applicable law or such exercise is not reasonably likely to result in
meritorious legal action by the Borrower and (y) the Special Servicer
determines, in accordance with the Servicing Standard, that such enforcement or
the withholding of such consent would be likely to result in a greater recovery,
on a present value basis (discounting at the related Mortgage Rate) than would a
waiver of such clause. If the Special Servicer determines that such enforcement
or the withholding of such consent would not be likely to result in a greater
recovery, the Special Servicer is authorized to take or enter into an assumption
agreement from or with the Person to whom the related Mortgaged Property has
been or is about to be conveyed, and to release the original Borrower from
liability upon the Mortgage Loan and substitute the new Borrower as obligor
thereon provided that (y) the credit status of the prospective new Borrower is
in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standards and criteria (as evidenced in writing by the
Special Servicer) and the terms of the related Mortgage and (z) the Special
Servicer has received written confirmation from each Rating Agency that such
assumption or substitution would not, in and of itself, cause a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates. In connection with each such assumption or substitution, the
Special Servicer shall give prior notice thereof to the Servicer. The Special
Servicer shall notify the Trustee that any such assumption or substitution
agreement has been completed by forwarding to the Trustee (with a copy to the
Servicer) the original copy of such agreement, with a copy to the Servicer,
which copies shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof.
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any lien or other
encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the creation of any
such lien or other encumbrance on the related Mortgaged Property,
then the Special Servicer, on behalf of the Trust Fund, shall (x) enforce such
due-on-encumbrance clause and accelerate the payments on the related Mortgage
Loan only if (1) unless the Special Servicer determines, in accordance with the
Servicing Standard, that such enforcement would be in the best interests of the
Trust Fund and (2) only if after consultation with the Servicer, based solely on
information provided to the Servicer by the Special Servicer and without making
any independent investigation thereof, (A) the Servicer agrees with such
determination or (B) the Servicer does not agree with such determination but the
Special Servicer receives the affirmative vote in favor of such enforcement from
at least 66 2/3% of the Voting Rights of Certificateholders responding within 30
Business Days to a solicitation of their vote by the Trustee, or (y) consent to
the creation of any such lien or other encumbrance only if the Special Servicer
(1) determines, in accordance with the Servicing Standard, that such consent
would be in the best interests of the Trust Fund and (2) receives prior written
confirmation from each Rating Agency granting such consent would not, in and of
itself, cause a downgrade, qualification or withdrawal of any of the then
current ratings assigned to the Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, neither the Servicer nor the Special Servicer
shall agree to modify, waive or amend, and no assumption or substitution
agreement entered into pursuant to Section 3.09(a) shall contain any terms that
are different from, any term of any Mortgage Loan or the related Note, other
than pursuant to Section 3.30.
(e) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through defeasance:
(i) In the event such Mortgage Loan requires that the Servicer on behalf
of the Trustee purchase the required U.S. government obligations, the
Servicer shall purchase such obligations in accordance with the terms
of such Mortgage Loan; provided, that the Servicer shall not accept
the amounts paid by the related Borrower to effect defeasance until
acceptable U.S. government obligations have been identified.
(ii) In the event that such Mortgage Loan permits the assumption of the
obligations of the related Borrower by a successor mortgagor, prior to
permitting such assumption and to the extent not inconsistent with
such Mortgage Loan, the Servicer shall obtain written confirmation
from each Rating Agency that such assumption would not, in and of
itself, cause a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates.
(iii)To the extent not inconsistent with such Mortgage Loan, the Servicer
shall require an Opinion of Counsel to the related Borrower (which
shall be an expense of the related Borrower) to the effect that the
Trustee has a first priority security interest in the defeasance
deposit and the U.S. government obligations and the assignment thereof
is valid and enforceable; such opinion, together with any other
certificates or documents to be required in connection with such
defeasance shall be in form and substance acceptable to each Rating
Agency.
(iv) To the extent not inconsistent with the Mortgage Loan, the Servicer
shall require a certificate at the related Borrower's expense from an
Independent certified public accountant certifying that the U.S.
government obligations comply with the requirements of the related
Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged Properties through
defeasance, to the extent not inconsistent with the related Mortgage
Loan, the Servicer shall obtain written confirmation from each Rating
Agency that such defeasance would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Mortgage Loan so requires and provides for
the related Borrower to pay the cost thereof, the Servicer shall
require an Opinion of Counsel of the related Borrower to the effect
that such release will not cause either the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions.
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Contemporaneously with the earliest of (i) the effective date of any
(A) modification of a Mortgage Rate, principal balance or amortization terms of
any Mortgage Loan, or any other term of a Mortgage Loan, (B) extension of the
Maturity Date of a Mortgage Loan as described below in Section 3.30(c), or (C)
consent to the release of any Mortgaged Property from the lien of the related
Mortgage other than pursuant to the terms of the related Mortgage Loan, (ii) the
occurrence of any Appraisal Reduction Event, (iii) a default in the payment of a
Balloon Payment, or (iv) the date on which the Special Servicer, consistent with
the Servicing Standard, requests that an Updated Appraisal be obtained, the
Servicer (after consultation with the Special Servicer) shall obtain an Updated
Appraisal; provided, however, that the Servicer shall not be required to obtain
an Updated Appraisal pursuant to clauses (i) through (iii) above with respect to
any Mortgaged Property for which there exists an appraisal which is less than
twelve months old provided, further, that if the Servicer is the Special
Servicer and either it or an Affiliate thereof owns more than 51% of the most
subordinate Class of Certificates then outstanding, then the Trustee shall
obtain such Updated Appraisal. The Servicer shall obtain letter updates to each
Updated Appraisal annually and prior to the Special Servicer granting extensions
beyond one year or any subsequent extension after granting a one year extension
with respect to the same Mortgage Loan; For so long as any Mortgage Loan for
which an Updated Appraisal has been obtained is included in the Trust Fund, the
Servicer shall obtain a new Updated Appraisal with respect to an Updated
Appraisal which is more than three years old.
(b) Upon the occurrence of a material default under a Specially Serviced
Mortgage Loan, except as otherwise specifically provided in Section 3.09(a) and
(b), the Special Servicer may, consistent with the Servicing Standard,
accelerate such Specially Serviced Mortgage Loan and commence a foreclosure or
other acquisition with respect to the related Mortgaged Property or Properties,
provided, that, that Special Servicer determines that such acceleration and
foreclosure are more likely to produce a greater recovery to Certificateholders
on a present value basis (discounting at the related Mortgage Rate) than would a
waiver of such default or an extension or modification in accordance with the
provisions of Section 3.30 hereof. In connection with any foreclosure or other
acquisition as to which the Special Servicer is not required to act under
Instructions from the Directing Holders, the Servicer shall pay the costs and
expenses in any such proceedings as an Advance unless the Servicer determines,
in its good faith judgment, that such Advance would constitute a Nonrecoverable
Advance. The Servicer shall be entitled to reimbursement of Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06(a)(ii), (iii) and (vii). If the Special
Servicer is acting pursuant to Instructions, the cost and expenses in any such
proceeding shall be paid by the Directing Certificateholders or the Special
Servicer, without reimbursement therefor by the Trust Fund.
(c) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officers'
Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate trustee or co-trustee on behalf of the Trustee
as holder of the Lower-Tier Regular Interests and Certificateholders.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an REO Loan held in the Trust Fund until such time as the
related REO Property shall be sold by the Trust Fund and shall be reduced only
by collections net of expenses. Consistent with the foregoing, for purposes of
all calculations hereunder, so long as such Mortgage Loan shall be considered to
be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note
and, for purposes of determining the Stated Principal Balance thereof,
the related amortization schedule in effect at the time of any such
acquisition of title remain in effect; and
(ii) Subject to Section 1.02(b), Net REO Proceeds received in any month
shall be applied to amounts that would have been payable under the
related Note in accordance with the terms of such Note. In the absence
of such terms, Net REO Proceeds shall be deemed to have been received
first in payment of the accrued interest (not including Excess
Interest) that remained unpaid on the date that the related REO
Property was acquired by the Trust Fund; second in respect of the
delinquent principal installments that remained unpaid on such date;
and thereafter, Net REO Proceeds received in any month shall be
applied to the payment of installments of principal and accrued
interest on such Mortgage Loan deemed to be due and payable in
accordance with the terms of such Note and such amortization schedule
until such principal has been paid in full and then to Excess Interest
and other amounts due under such Mortgage Loan. If such Net REO
Proceeds exceed the Monthly Payment then payable, the excess shall be
treated as a Principal Prepayment received in respect of such Mortgage
Loan.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion of
Counsel (which opinion shall be an expense of the Lower-Tier REMIC) to
the effect that the holding of such personal property by the
Lower-Tier REMIC will not cause the imposition of a tax on the
Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund) to the effect that the holding of such partnership interest
or other equity interest by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable environmental
laws or, if not, after consultation with an environmental consultant,
that it would be in the best economic interest of the Trust Fund to
take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property relating
to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal,
state or local law or regulation, or that, if any such Hazardous
Materials are present for which such action could be required, after
consultation with an environmental consultant, it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section 3.10(g) shall be
prepared within three months of the determination that such assessment is
required by any Independent Person who regularly conducts environmental audits
for purchasers of commercial property where the Mortgaged Property is located,
as determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Servicer shall advance the cost of preparation of such
environmental assessments unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. The Servicer
shall be entitled to reimbursement of Advances (with interest at the Advance
Rate) made pursuant to the preceding sentence in the manner set forth in Section
3.06.
(i) If the Special Servicer determines pursuant to Section 3.10(g)(i) that
a Mortgaged Property is not in compliance with applicable environmental laws but
that it is in the best economic interest of the Trust Fund to take such actions
as are necessary to bring such Mortgaged Property in compliance therewith, or if
the Special Servicer determines pursuant to Section 3.10(g)(ii) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer, and only if the Trustee does not
receive, within 30 days of such notification, instructions from the Holders of
greater than 50% of the aggregate Voting Rights of such Classes directing the
Special Servicer not to take such action. Notwithstanding the foregoing, if the
Special Servicer reasonably determines that it is likely that within such 30-day
period irreparable environmental harm to such Mortgage Property would result
from the presence of such Hazardous Materials and provides a prior written
statement to the Trustee setting forth the basis for such determination, then
the Special Servicer may take such action to remedy such condition as may be
consistent with the Servicing Standard. None of the Trustee, the Servicer or the
Special Servicer shall be obligated to take any action or not take any action
pursuant to this Section 3.10(i) at the direction of the Certificateholders
unless the Certificateholders agree to indemnify the Trustee, the Servicer and
the Special Servicer with respect to such action or inaction. The Special
Servicer shall advance the cost of any such compliance, containment, clean-up or
remediation unless the Special Servicer determines, in its good faith judgment,
that such Advance would constitute a Nonrecoverable Advance.
(j) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(k) The costs of any Updated Appraisal obtained pursuant to this Section
3.10 shall be paid by the Servicer as an Advance and shall be reimbursable from
the Collection Account (or from the Collateral Account to the extent Advances
are otherwise reimbursable therefrom pursuant to this Section 3.10).
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Servicer shall immediately notify the Trustee
or the Custodian by a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Servicer or Special Servicer and
delivery to the Trustee and the Custodian of a Request for Release, the Trustee
shall promptly cause the Custodian to release the Mortgage File (or any portion
thereof) designated in such Request for Release to the Servicer or Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan into an REO
Property, receipt by the Trustee of a certificate of a Servicing Officer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Collection Account or Distribution Account have been so deposited, or
that such Mortgage Loan has become an REO Property, the Custodian shall deliver
a copy of the Request for Release to the Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Servicer shall be
entitled with respect to each Mortgage Loan to the Servicing Fee, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Section 3.06(iv). The Servicer's rights to the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Servicer's responsibilities and obligations under this Agreement. In
addition, the Servicer shall be entitled to receive, as additional Servicing
Compensation, to the extent permitted by applicable law and the related Mortgage
Loans, any late payment charges, loan service transaction fees, beneficiary
statement charges or similar items (but not including any Prepayment Premiums)
and, for any modification, extension or other action by the Special Servicer for
which the consent or concurrence of, or review by, the Servicer is required,
one-quarter of any modification or extension fees payable by the related
Borrower in connection therewith, in each case to the extent received and not
required to be deposited or retained in the Collection Account pursuant to
Section 3.05; provided, however, that the Servicer shall not be entitled to
apply or retain any amounts as additional compensation, any late payment charges
with respect to any Mortgage Loan with respect to which a default or event of
default thereunder has occurred and is continuing unless and until such default
or event of default has been cured and all delinquent amounts (including any
Default Interest) due with respect to such Mortgage Loan have been paid. The
Servicer shall also be entitled pursuant to, and to the extent provided in,
Sections 3.06(iv) and 3.07(b) to withdraw from the Collection Account and to
receive from any Borrower Accounts (to the extent not payable to the related
Borrower under the Mortgage Loan or applicable law), the Distribution Account,
Upper-Tier Distribution Account, Default Interest Distribution Account, and the
Excess Interest Distribution Account, any interest or other income earned on
deposits therein. Notwithstanding the foregoing, (i) the Servicing Fee and
investment income earned on any Principal Prepayments during the related
Collection Period and due to the Servicer on any Distribution Date shall be
reduced by the amount of any Servicer Prepayment Interest Shortfalls, and (ii)
the Servicing Fee with respect to the Mortgage Loan known as the Pinnacle Retail
Portfolio loan shall be reduced to 0.0% with respect to the portion of such loan
that is defeased in accordance with the terms thereof.
As compensation for its activities hereunder on each Distribution Date, the
Trustee shall be entitled with respect to each Mortgage Loan to the Trustee Fee,
which shall be payable from amounts on deposit in the Collection Account as set
forth in Section 3.06(v). The Trustee shall pay the routine fees and expenses of
the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Servicer shall pay all expenses
incurred by it in connection with its servicing activities hereunder, including
all fees of any sub-servicers retained by it. Except as otherwise provided
herein, the Trustee shall pay all expenses incurred by it in connection with its
activities hereunder.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled with respect to each Specially Serviced Mortgage Loan to the
Special Servicing Fee, which shall be payable from amounts on deposit in the
Collection Account as set forth in Section 3.06(iv). In addition, the Special
Servicer shall be entitled to, with respect to each Mortgage Loan, the
Additional Servicing Fee for performing the duties set forth in Section 3.19(c),
which fee shall be payable from amounts on deposit in the Collection Account
pursuant to Section 3.06(iv) provided, that, the Additional Servicing Fee Rate
with respect to the Mortgage Loan known as the Pinnacle Retail Portfolio loan
shall be reduced to 0.0% with respect to the portion of such loan that is
defeased in accordance with the terms thereof. The Special Servicer's rights to
the Special Servicing Fee and Additional Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement. In addition,
the Special Servicer shall be entitled to receive, as additional servicing
compensation, (i) to the extent permitted by applicable law and the related Loan
Documents, any Assumption Fees, loan service transaction fees, demand fees,
statement charges and other fees relating to any Specially Serviced Mortgage
Loan or with respect to servicing activities performed by the Special Servicer
and, for any modification, extension or other action by the Special Servicer for
which the consent of, or review by, the Servicer is required, three-quarters of
any modification or extension fees payable by the related Borrower in connection
therewith and (ii) any interest or other income earned on deposits in the REO
Accounts. If a review by, or the consent of, the Servicer is not required in
connection with an extension or modification, the Special Servicer shall be
entitled to the full amount of any modification or extension fees.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) Reserved.
(d) Notwithstanding the foregoing, in the event that the Special Servicer
is, or is an Affiliate of, or has an economic arrangement for the purpose of
retaining the full Special Servicing Fee Rate with, the Holder or Holders of
Certificates representing 51% of the Voting Rights of the most subordinate Class
of Certificates then outstanding, the Special Servicer shall provide written
notice thereof to the Servicer and the Special Servicer shall be entitled to
receive a Special Servicing Fee that accrues at a rate equal to one-half of the
Special Servicing Fee Rate.
(e) The Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(vii).
(f) No provision of this Agreement or of the Certificates shall require the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer or the Trustee receives a request or
inquiry from a Borrower, any Certificateholder or any other Person the response
to which would, in the Servicer's or the Trustee's good faith business judgment
require the assistance of Independent legal counsel or other consultant to the
Servicer, the Special Servicer or the Trustee, the cost of which would not be an
expense of the Trust Fund hereunder, then the Servicer, the Special Servicer or
the Trustee, as the case may be, shall not be required to take any action in
response to such request or inquiry unless the Borrower or such
Certificateholder or such other Person, as applicable, makes arrangements for
the payment of the Servicer's, the Special Servicer's or the Trustee's expenses
associated with such counsel (including, without limitation, posting an advance
payment for such expenses) satisfactory to the Servicer, the Special Servicer or
the Trustee, as the case may be, in its sole discretion. Unless such
arrangements have been made, the Servicer, the Special Servicer or the Trustee,
as the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Servicer shall deliver to the Trustee and the Special Servicer, no
later than 2:00 p.m. Central time on the Servicer Remittance Date prior to each
Distribution Date, the Servicer Remittance Report with respect to the related
Distribution Date (which shall include, without limitation, the amount of
Available Funds for such related Collection Period) including a written
statement of anticipated P&I Advances for the related Distribution Date. The
Servicer's responsibilities under this Section 3.13(a) with respect to REO Loans
shall be subject to the satisfaction of the Special Servicer's obligations under
Section 3.26.
(b) For so long as the Servicer makes deposits into and withdrawals from
the Collection Account, not later than fifteen days after each Distribution
Date, the Servicer shall forward to the Trustee a statement prepared by the
Servicer setting forth the status of the Collection Account as of the close of
business on the last Business Day of the related Collection Period and showing
the aggregate amount of deposits into and withdrawals from the Collection
Account of each category of deposit specified in Section 3.05 and each category
of withdrawal specified in Section 3.06 for the related Collection Period. The
Trustee and its agents and attorneys may at any time during normal business
hours, upon reasonable notice, inspect and copy the books, records and accounts
of the Servicer solely relating to the Mortgage Loans and the performance of its
duties hereunder.
(c) The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person") each shall
deliver to the Trustee, the Depositor and to the Rating Agencies on or before
March 15 of each year, beginning with March 15, 1997, an Officer's Certificate
stating, as to each signatory thereof, (i) that a review of the activities of
the reporting person during the preceding calendar year (or such shorter period
from the Closing Date to the end of the related calendar year) and of its
performance under this Agreement has been made under such officer's supervision,
(ii) that, to the best of such officer's knowledge, based on such review, the
reporting person has fulfilled all of its obligations under this Agreement
throughout such year (or such shorter period), or, if there has been a default
in the fulfillment of any such obligation, specifying each such default known to
such officer, the nature and status thereof and what action it proposes to take
with respect thereto, (iii) that, to the best of such officer's knowledge, each
related sub-servicer has fulfilled its obligations under its sub-servicing
agreement in all material respects, or, if there has been a material default in
the fulfillment of such obligations, specifying each such default known to such
officer and the nature and status thereof, and (iv) whether it has received any
notice regarding qualification, or challenging the status, of the Upper-Tier
REMIC or Lower-Tier REMIC as a REMIC from the IRS or any other governmental
agency or body.
SECTION 3.15. Annual Independent Public Accountants' Servicing Report.
On or before March 15 of each year, beginning with March 15, 1997, the
Servicer and the Special Servicer (the "reporting person") each at the reporting
person's expense shall cause a firm of nationally recognized Independent public
accountants (who may also render other services to the reporting person) which
is a member of the American Institute of Certified Public Accountants to furnish
a statement (an "Accountant's Statement") to the Trustee, the Depositor and to
the Rating Agencies, to the effect that such firm has examined certain documents
and records relating to the servicing of the similar mortgage loans under
similar agreements and that, on the basis of such examination conducted
substantially in compliance with generally accepted auditing standards and the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC, such servicing has been conducted in compliance
with similar agreements except for such significant exceptions or errors in
records that, in the opinion of such firm, generally accepted auditing standards
and the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FHLMC require it to report, in which case
such exceptions and errors shall be so reported. Each reporting person shall
obtain from the related accountants, or shall prepare, an electronic version of
each Accountant's Statement and provide such electronic version to the Trustee
for filing in accordance with the procedures set forth in Section 3.22 hereof.
With respect to any electronic version of an Accountant's Statement prepared by
the reporting person, the reporting person shall receive written confirmation
from the related accountants that such electronic version is a conformed copy of
the original Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any Certificateholders
that are federally insured financial institutions, the Federal Reserve Board,
the FDIC and the OTS and the supervisory agents and examiners of such boards and
such corporations, and any other governmental or regulatory body to the
jurisdiction of which any Certificateholder is subject, access to the
documentation regarding the Mortgage Loans required by applicable regulations of
the Federal Reserve Board, FDIC, OTS or any such governmental or regulatory
body, such access being afforded without charge but only upon reasonable request
and during normal business hours at the offices of the Servicer and Special
Servicer. Nothing in this Section 3.16 shall detract from the obligation of the
Servicer and Special Servicer to observe any applicable law prohibiting
disclosure of information with respect to the Borrowers, and the failure of the
Servicer and Special Servicer to provide access as provided in this Section 3.16
as a result of such obligation shall not constitute a breach of this Section
3.16.
SECTION 3.17. Title and Management of REO Properties and REO Account
Properties.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Servicer), or a separate trustee or co-trustee, on behalf of the
Trust Fund. The Special Servicer, on behalf of the Trust Fund, shall dispose of
any REO Property within two years after the Trust Fund acquires ownership of
such REO Property for purposes of Section 860G(a)(8) of the Code, unless (i) the
Special Servicer on behalf of the Lower-Tier REMIC has applied for an extension
of such two-year period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the
Code, in which case the Special Servicer shall sell such REO Property within the
applicable extension period or (ii) the Special Servicer seeks and subsequently
receives an Opinion of Counsel (which opinion shall be an expense of the Trust
Fund), addressed to the Special Servicer and Trustee, to the effect that the
holding by the Trust Fund of such REO Property for an additional specified
period will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code) at any time that any Certificate is outstanding, in which event such
two-year period shall be extended by such additional specified period subject to
any conditions set forth in such Opinion of Counsel. The Special Servicer, on
behalf of the Trust Fund, shall dispose of any REO Property held by the Trust
Fund prior to the last day of such period (taking into account extensions) by
which such REO Property is required to be disposed of pursuant to the provisions
of the immediately preceding sentence in a manner provided under Section 3.18
hereof. The Special Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the manner
in which the Special Servicer manages and operates similar property owned or
managed by the Special Servicer or any of its Affiliates, all on such terms and
for such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
agree to the payment of management fees that are consistent with general market
standards. The Special Servicer shall segregate and hold all revenues received
by it with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3, REO Account." The Special Servicer
shall be entitled to withdraw for its account any interest or investment income
earned on funds deposited in an REO Account to the extent provided in Section
3.07(b). The Special Servicer shall deposit or cause to be deposited in the REO
Account within one Business Day after receipt all revenues received by it with
respect to any REO Property (other than Liquidation Proceeds), and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property and for other Property Protection Expenses with
respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO Property;
(ii) all real estate taxes and assessments in respect of any REO Property
that may result in the imposition of a lien thereon;
(iii)all costs and expenses reasonable and necessary to protect, maintain,
manage, operate, repair and restore any REO Property; and
(iv) any taxes imposed on the Upper Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance with
Section 4.05.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above and the Special Servicer has provided
written notice of such shortfall to the Servicer at least five Business Days
prior to the date that such amounts are due, the Servicer shall advance the
amount of such shortfall unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. If the Servicer
does not make any such Advance in violation of the immediately preceding
sentence, the Trustee shall make such Advance; and if the Trustee fails to make
any such Advance, the Fiscal Agent shall make such Advance, unless in either
case, the Trustee or the Fiscal Agent determines that such Advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Servicer that an Advance, if
made, would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent, in
determining whether or not a proposed Advance would be a Nonrecoverable Advance,
shall be subject to the standards applicable to the Servicer hereunder. The
Servicer, the Trustee or the Fiscal Agent, as applicable, shall be entitled to
reimbursement of such Advances (with interest at the Advance Rate) made pursuant
to the preceding sentence, to the extent set forth in Section 3.06. The Special
Servicer shall withdraw from each REO Account and remit to the Servicer for
deposit into the Collection Account on a monthly basis prior to the related
Servicer Remittance Date the Net REO Proceeds received or collected from each
REO Property, except that in determining the amount of such Net REO Proceeds,
the Special Servicer may retain in each REO Account reasonable reserves for
repairs, replacements and necessary capital improvements and other related
expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease, if
the New Lease by its terms will give rise to any income that does not
constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease, other
than amounts that will constitute Rents from Real Property;
(iii)authorize or permit any construction on any REO Property, other than
the repair or maintenance thereof or the completion of a building or
other improvement thereon, and then only if more than ten percent of
the construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any REO
Property on any date more than 90 days after its date of acquisition
by the Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an Independent
Contractor (acceptable to each Rating Agency as evidenced by written
confirmation that contracting with such Independent Contractor would not, in and
of itself cause a downgrade, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates), the fees and expenses of which
shall be an expense of the Trust Fund and payable out of REO Proceeds, for the
operation and management of any REO Property, within 90 days of the Trust Fund's
acquisition thereof (unless the Special Servicer shall have provided the Trustee
with an Opinion of Counsel that the operation and management of any REO Property
other than through an Independent Contractor shall not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Code Section
860G(a)(8)) (which opinion shall be an expense of the Trust Fund), provided
that:
(i) the terms and conditions of any such contract shall be reasonable and
customary for the area and type of property and shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to require,
that the Independent Contractor pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including those listed above, and remit all related revenues (net of
such costs and expenses) to the Special Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii)none of the provisions of this Section 3.17(b) relating to any such
contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties
and obligations to the Trust Fund or the Trustee on behalf of the
Certificateholders with respect to the operation and management of any
such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) Promptly following any acquisition by the Trust Fund of an REO
Property, the Servicer shall obtain an Updated Appraisal thereof, but only in
the event that any Updated Appraisal with respect thereto is more than 12 months
old, in order to determine the fair market value of such REO Property and shall
notify the Depositor, the Special Servicer and the Trustee hereto of the results
of such appraisal. Any such appraisal shall be conducted in accordance with MAI
standards and the cost thereof shall be an expense of the Trust Fund.
(d) When and as necessary, the Special Servicer shall send to the Trustee a
statement prepared by the Special Servicer setting forth the amount of net
income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties.
(a) With respect to any Specially Serviced Mortgage Loan or REO Property
which the Special Servicer has determined to sell in accordance with Section
3.10, the Special Servicer shall deliver to the Trustee an Officers' Certificate
to the effect that pursuant to Section 3.10, the Special Servicer has determined
to sell such Specially Serviced Mortgage Loan or REO Property in accordance with
this Section 3.18. The Special Servicer may then offer to sell to any Person any
Specially Serviced Mortgage Loan or any REO Property or, subject to the
following sentence, purchase any such Specially Serviced Mortgage Loan or REO
Property (in each case at the Repurchase Price therefor), but shall, in any
event, so offer to sell any REO Property no later than the time determined by
the Special Servicer to be sufficient to result in the sale of such REO Property
within the period specified in Section 3.17(a). The Special Servicer shall
deliver such Officers' Certificate and give the Trustee not less than ten
Business Days prior written notice of its intention to sell any Specially
Serviced Mortgage Loan or REO Property, in which case the Special Servicer shall
accept the highest offer (of at least three offers) received from any Person for
any Specially Serviced Mortgage Loan or any REO Property in an amount at least
equal to the Repurchase Price therefor or, at its option, if it has received no
offer at least equal to the Repurchase Price therefor, purchase the Specially
Serviced Mortgage Loan or REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special Servicer, the
Special Servicer shall accept the highest offer received from any Person that is
determined by the Special Servicer to be a fair price, as determined in
accordance with Section 3.18(b), for such Specially Serviced Mortgage Loan or
REO Property, if the highest offeror is a Person other than an Interested
Person, or is determined to be a fair price by the Trustee in accordance with
Section 3.18(b), if the highest offeror is an Interested Person; provided, that
the Trustee shall be entitled to engage, at the expense of the Trust Fund, an
Independent appraiser to determine whether the highest offer is a fair price
and, further provided, that if the highest offeror is an Interested Person such
offer shall not be accepted if it is less than the Repurchase Price, unless the
Rating Agencies have confirmed, in writing, that such acceptance will not, in
itself, result in the qualification, downgrade or withdrawal of the then-current
ratings assigned to the Certificates. Notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower offer are more favorable),
provided that the offeror is not an Affiliate of the Special Servicer. In the
event that the Special Servicer determines with respect to any REO Property that
the offers being made with respect thereto are not in the best interests of the
Certificateholders and that the end of the two-year period referred to in
Section 3.17(a) with respect to such REO Property is approaching, the Special
Servicer shall seek an extension of such two-year period in the manner described
in Section 3.17(a); provided, however, that the Special Servicer shall use its
best efforts, consistent with the Servicing Standard, to sell any REO Property
prior to the Rated Final Distribution Date.
(b) In determining whether any offer received from an Interested Person
represents a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Independent
appraiser or other expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a fair
price for any Specially Serviced Mortgage Loan or any REO Property, the Special
Servicer (if the highest offeror is not an Interested Person) or the Trustee
(or, if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into account,
as applicable, among other factors, any Updated Appraisal previously obtained,
the period and amount of any delinquency on the affected Specially Serviced
Mortgage Loan, the physical (including environmental) condition of the related
Mortgaged Property or such REO Property, the state of the local economy and the
Trust Fund's obligation to dispose of any REO Property within the time period
specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Servicer, the Special Servicer or
the Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary warranties of title, so long as the only
recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Servicer,
the Depositor, the Fiscal Agent and the Trustee pursuant to the terms of this
Agreement, no such Person who so performed shall have any liability to the Trust
Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer or, if the offeror is an Interested Person, the
Servicer (or the Trustee, if the Servicer is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with IRS at the time and in
the manner required by the Code.
(e) The proceeds of any sale after deduction of the expenses of such sale
incurred in connection therewith shall be promptly, and in any event within one
Business Day following receipt thereof, deposited in the Collection Account in
accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Servicer and Special Servicer;
Inspections.
(a) The Special Servicer shall inspect or cause to be inspected (at its own
expense) each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property securing a Note with a Stated Principal Balance (or in the
case of a Note secured by more than one Mortgaged Property, having an Allocated
Loan Amount) of (A) $2,000,000 or more at least once every 12 months and (B)
less than $2,000,000 at least once every 24 months, in each case commencing in
November 1996 (or at such lesser frequency as each Rating Agency shall have
confirmed in writing to the Servicer or the Special Servicer, will not result a
downgrade, qualification or withdrawal of the then current ratings assigned to
any Class of the Certificates), provided, that if any Mortgage Loan (a) becomes
a Specially Serviced Mortgaged Loan, (b) is delinquent for 60 days or (c) has a
debt service coverage ratio of less than 1.0, each related Mortgaged Property
shall be inspected by the Special Servicer as soon as practicable and thereafter
at least every 12 months for so long as any Monthly Payment with respect to such
Mortgage Loan remains delinquent.
(b) With respect to each Mortgage Loan, the Special Servicer shall enforce
the Trustee's rights with respect to the Manager under the related Loan
Documents and Management Agreement, provided, that, if such right accrues under
the related Loan Documents or Management Agreement only because of the
occurrence of the related Anticipated Repayment Date, if any, the Special
Servicer shall irrevocably waive such right with respect to such date. In the
event the Special Servicer is entitled to terminate the Manager, the Special
Servicer shall promptly give notice to the Trustee (who shall copy the
Certificateholders), the Originator, the Depositor, the Servicer and each Rating
Agency. After receipt of such notice, the most subordinate Class of Certificates
then outstanding shall have the right to recommend termination of the Manager,
and if so, to recommend a Successor Manager (meeting the requirements set forth
below). Certificateholders representing Percentage Interests of greater than 50%
of such subordinate Class of Certificates will have ten Business Days from the
receipt of the Special Servicer's notice to respond to such notice. Upon receipt
of a recommendation to terminate the Manager and appoint a Successor Manager,
the Special Servicer shall give notice of such recommendation to the Trustee
(who shall copy the Certificateholders), and the Special Servicer shall effect
such recommendation unless: (i) within five Business Days of the receipt of
notice of such recommendation, Certificateholders representing Percentage
Interests of greater than 50% of any Class of Certificates then outstanding
which was assigned a rating by any Rating Agency on the Closing Date reject such
proposed Successor Manager in which case the Special Servicer shall procure a
Successor Manager as set forth in the following sentence; or (ii) the Special
Servicer determines that effecting such recommendation to terminate is not
consistent with the Servicing Standard, the Special Servicer shall only effect
such recommendation if within 30 days of giving notice to all other Holders the
Special Servicer has not received a rejection of such recommendation from
Holders of Certificates representing Voting Rights of greater than 50% of any
Class of Certificates then outstanding which is assigned a rating by any Rating
Agency on the Closing Date. If the Special Servicer does not receive a required
response (or if the response received is inconsistent) or in the event a Manager
is otherwise terminated or resigns under the related Mortgage or Management
Agreement and the related Borrower does not appoint a Successor Manager, the
Special Servicer shall use its best efforts to retain a Successor Manager (or
the recommended Successor Manager, if any) on terms substantially similar to the
Management Agreement or, failing that, on terms as favorable to the Trust Fund
as can reasonably be obtained by the Special Servicer. For the purposes of this
paragraph, a "Successor Manager" shall be reasonably acceptable to the Special
Servicer and a professional management corporation or business entity which (i)
manages, and is experienced in managing, other comparable commercial properties,
(ii) will not result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates by each Rating Agency and (iii)
otherwise satisfies any criteria set forth in the Mortgage and related
documents.
(c) The Special Servicer, in addition to its duties with respect to the
Specially Serviced Mortgage Loans and in accordance with the Servicing Standard,
shall be responsible for (i) conducting (or retaining a third party to conduct)
inspections of each Mortgaged Property in accordance with Section 3.19(a), (ii)
collecting annual and quarterly operating statements and rent rolls with respect
to each Mortgaged Property, and (iii) making reasonable efforts to collect any
delinquent Monthly Payment and any other payments required under the terms and
provisions of the related Mortgage Loans upon notification by the Servicer that
the related Borrower is delinquent and that the Servicer has made an initial
contact with such Borrower in connection with such Delinquency. The Special
Servicer shall provide copies of the foregoing information and all reports to
the Servicer and the Trustee on or prior to the 15th of each month for the
period covering the prior month.
SECTION 3.20. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and the Servicer and must be a corporation organized and doing
business under the laws of the United States of America or any state, having a
principal office and place of business in a state and city acceptable to the
Depositor and the Servicer, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities. The Trustee shall
serve as the initial Authenticating Agent and the Trustee hereby accepts such
appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee, the Depositor and the
Servicer. The Trustee may at any time terminate the agency of the Authenticating
Agent by giving written notice of termination to the Authenticating Agent, the
Depositor and the Servicer. Upon receiving a notice of resignation or upon such
a termination, or in case at any time the Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 3.20, the Trustee
promptly shall appoint a successor Authenticating Agent, which shall be
acceptable to the Servicer and the Depositor, and shall mail notice of such
appointment to all Certificateholders. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 3.20.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any reasonable
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
SECTION 3.21. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. The Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000, shall have a long-term
debt rating of at least "BBB" from Fitch and DCR and "Baa2" from Moody's ,
unless the Trustee shall have received prior written confirmation from each
Rating Agency that the appointment of such Custodian would not cause such Rating
Agency to withdraw, qualify or downgrade any of its then-current ratings on the
Certificates, and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. Each Custodial Agreement may be amended only as
provided in Section 10.07. Any reasonable compensation paid to the Custodian
shall be an unreimbursable expense of the Trustee. The Trustee shall serve as
the initial Custodian.
SECTION 3.22. Reports to the Securities and Exchange Commission; Available
Information.
(a) The Servicer shall prepare and sign, on behalf of the Depositor, any and all
Exchange Act Reports; provided, however, that (i) the Depositor shall prepare,
sign and file with the Commission the initial Form 8-K relating to the Trust
Fund and (ii) the Special Servicer shall prepare and sign on behalf of the
Depositor any Exchange Act Report which includes an Annual Compliance Report
relating to the Special Servicer. Each Exchange Act Report consisting of a
Monthly Distribution Statement, Special Event Report or Summary Report shall be
prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act Report
consisting of an Annual Compliance Report shall be prepared as exhibits to an
Annual Report on Form 10-K and shall identify the aggregate number of Holders of
Public Certificates and Direct Participants holding positions in Public
Certificates as of December 31 (or the nearest Business Day if such date is not
a Business Day) of the related year based on information provided by the
Trustee. The Trustee shall provide the Servicer and the Special Servicer with a
list of Certificateholders and Direct Participants holding Public Certificates
as of December 31 of the related year no later than two Business Days prior to
the date on which the Servicer or Special Servicer, as applicable, is required
to deliver the related Exchange Act Report to the Trustee. For each Exchange Act
Report, the Servicer or the Special Servicer, as applicable, shall prepare (i) a
manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a Microsoft Word for Windows
file (or in such other format as the Trustee, the Depositor and the Servicer or
the Special Servicer may agree), provided, that, with respect to the electronic
version of each Exchange Act Report consisting of a Monthly Distribution
Statement, the Servicer need only deliver an electronic version of the related
Form 8-K and the Trustee shall attach an electronic version of the related
Monthly Distribution Statement thereto as an exhibit. Exchange Act Reports
consisting of (i) a Monthly Distribution Statement shall be delivered within ten
days after the related Distribution Date; (ii) a Special Event Report shall be
delivered within ten days after the occurrence of event being reported or the
date on which the Servicer has knowledge of the occurrence of such event,
whichever is later; (iii) a Summary Report shall be delivered within ten days
after the last Business Day of the related calendar quarter or year, as
applicable; and (iv) an Annual Compliance Report shall be delivered on or prior
to March 15 of each calendar year. Electronic versions of each Exchange Act
Report shall be delivered to the Trustee on a computer diskette (delivered by
courier in packaging designed to shield such diskette from damage in
transmission) or by means of electronic data transfer system mutually agreed
upon by the Trustee and the Servicer or Special Servicer. The Trustee shall
forward each Exchange Act Report to the Depositor in a manner and in a format
agreed upon by the Trustee and the Depositor. Manually-signed copies of each
Exchange Act Report shall be delivered to the Depositor to the attention of
William Kramer (or such other Persons as are designated in writing by the
Depositor), with a copy to the Trustee.
If information for any Exchange Act Report is incomplete by the date on
which such report is required to be delivered to the Trustee hereunder, the
Servicer or, with respect to any Annual Compliance Report relating to the
Special Servicer, the Special Servicer shall prepare and execute a Form 12b-25
under the Exchange Act and shall deliver an electronic version of such form to
the Trustee for forwarding to the Depositor as provided above. The Servicer or
the Special Servicer, as applicable, shall deliver the related report in
electronic form to the Trustee when such information is available and such
completed report shall be forwarded electronically by the Trustee to the
Depositor.
None of the Servicer, the Special Servicer and the Trustee shall (i) file a
Form ID with respect to the Depositor or (ii) cause the Trust Fund to stop
filing reports, statements and information with the Commission pursuant to this
Section unless directed to do so by the Depositor or the continued reporting is
prohibited under the Exchange Act or any regulations thereunder. Upon the
written request of the Depositor, the Servicer shall file a Form 15 relating to
the Trust Fund with the Commission and send a copy thereof to the Trustee and
the Depositor.
The Trustee shall solicit any and all proxies of the Certificateholders
whenever such proxies are required to be solicited pursuant to the Exchange Act.
(b) The Servicer shall promptly prepare a report (each, a "Special Event
Report") reporting (i) any notice from a Borrower or insurance company, or any
knowledge otherwise obtained, regarding an upcoming voluntary or involuntary
prepayment (including that resulting from a casualty or condemnation) or
defeasance of all or part of the related Mortgage Loan (provided that a request
by a Borrower or other Person for a quotation of the amount necessary to satisfy
all obligations with respect to a Mortgage Loan shall not, in and of itself, be
deemed to be such notice); (ii) any imminent or actual default on a Mortgage
Loan that results or which the Servicer, after consultation with the Special
Servicer, reasonably believes is likely to result in the acceleration of the
indebtedness due under such Mortgage Loan; (iii) the results of any property
inspection of which the Servicer has knowledge and which has revealed any
material damage or deterioration or the presence of any environmental condition
with respect to any Mortgaged Property; (iv) any notice from a Borrower, or any
knowledge otherwise obtained, regarding any litigation involving such Borrower
or any related Mortgaged Property which the Servicer reasonably believes is
likely to have an adverse effect on the Mortgaged Property or the ability of
such Borrower to pay the amounts due under the related Mortgage Loan; (v) any
notice received from a Borrower, Manager or tenant of a Mortgaged Property, or
any knowledge otherwise obtained, regarding the material default of such tenant
under the terms of its lease or early termination by either the tenant or the
Borrower of such lease, the bankruptcy of such tenant or its direct or indirect
parent, or the loss of a license or permit relating to the Mortgaged Property;
(vi) any amendment, modification or waiver of a material provision of a Mortgage
Loan of which the Servicer has knowledge; (vii) any event of which the Servicer
has actual knowledge (other than an event covered by clause (i)) which would
result in the release of any part of the Mortgaged Property; provided, however,
that in the event that the Servicer after consulting with the Depositor and the
Special Servicer determines in its good faith judgment that any of the preceding
items will not materially affect the interests of the Certificateholders, the
Servicer shall omit such item from the reporting obligation described above.
The Special Servicer shall report to the Servicer any of the foregoing
events within one Business Day of the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Servicer and the Special Servicer shall provide to each other and to the
Trustee written notice of any other known event with respect to a Mortgage Loan
or REO Property that the Servicer or the Special Servicer, respectively,
determines would have a material adverse effect on such Mortgage Loan or REO
Property, which notice shall include an explanation as to the reason for such
material adverse effect.
(c) The Special Servicer shall collect all information available pursuant
to the Mortgage Loans and shall furnish such information, without modification,
interpretation or analysis (except that the Special Servicer will use its best
efforts to isolate management fees and funded reserves from Borrower reported
expenses, if necessary), to the Servicer on or prior to the fifteenth day of
each month with respect to information relating to the prior month and in a form
sufficient to permit the Servicer to fulfill its obligations in this Section.
Once per applicable period, the Servicer shall prepare a Summary Report based on
information provided to the Servicer by the Special Servicer. To the extent not
inconsistent with the related Borrower's rights under the Mortgage Loan or
applicable law, the Servicer shall deliver a copy of each Summary Report to each
Rating Agency and the Trustee. None of the Servicer, the Special Servicer and
the Trustee shall be responsible for the completeness or accuracy of such
information provided by the Borrowers.
(d) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates be executed to the
extent the Servicer deems such action to be necessary or appropriate), also make
available any additional information relating to the Mortgage Loans, the
Mortgaged Properties or the Borrowers, for review by the Depositor, the Rating
Agencies and any other Persons to whom the Servicer believes such disclosure is
appropriate, in each case except to the extent doing so is prohibited by
applicable law or by any related Loan Documents related to a Mortgage Loan.
(e) The Trustee shall deliver a copy of each Summary Report and Annual
Compliance Statement to each Rating Agency and, upon request, to each
Certificateholder and Beneficial Owner (provided that each Certificateholder and
Beneficial Owner may only make one request per month and will be required to pay
any expenses incurred by the Trustee in connection with the provision of such
information). The Trustee shall also deliver a copy of each Special Event Report
to each Rating Agency, Certificateholder and, if known, Beneficial Owner within
one Business Day of receipt. The Trustee shall deliver the foregoing information
and reports regardless of whether the Trust Fund is still filing Exchange Act
Reports. The Trustee shall also make available at its offices primarily
responsible for administration of the Trust Fund, during normal business hours,
or send to the requesting party at the expense of each such requesting party
(other than the Rating Agencies) for review by the Depositor, the Rating
Agencies, any Certificateholder, any Person identified to the Trustee by a
Certificateholder as a prospective transferee of a Certificate and any other
Persons to whom the Trustee believes such disclosure is appropriate, the
following items: (i) this Agreement, (ii) all Monthly Distribution Statements,
(iii) all Annual Compliance Reports, (iv) all Summary Reports and (v) all
Special Event Reports.
The Servicer and the Special Servicer shall make available at its offices
during normal business hours, or send to the requesting party at the expense of
each such requesting party (other than the Rating Agencies) for review by the
Depositor, the Trustee, the Rating Agencies, any Certificateholder, any Person
identified to the Servicer or the Special Servicer, as applicable, by a
Certificateholder as a prospective transferee of a Certificate and any other
Persons to whom the Servicer or the Special Servicer, as applicable, believes
such disclosure to be appropriate the following items: (i) all financial
statements, occupancy information, rent rolls, average daily room rates and
similar information received by the Servicer or the Special Servicer, as
applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Servicer or the Special Servicer, as applicable, in connection
with the property inspections pursuant to Section 3.19, (iii) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer or the Special Servicer, as applicable and (iv) any and all
officer's certificates and other evidence delivered to the Trustee and the
Depositor to support the Servicer's determination that any Advance was, or if
made would be, a Nonrecoverable Advance. Copies of any and all of the foregoing
items shall be available from the Servicer or the Special Servicer, as
applicable, or the Trustee, as applicable, upon request.
(e) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.22, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(f) Notwithstanding any provisions in this Agreement to the contrary, the
Trustee shall not be required to review the content of any Exchange Act Report
for compliance with applicable securities laws or regulations, completeness,
accuracy or otherwise, and the Trustee shall have no liability with respect to
any Exchange Act Report filed with the Commission or delivered to
Certificateholders. None of the Servicer, the Special Servicer and the Trustee
shall be responsible for the accuracy or completeness of any information
supplied by a Borrower or a third party for inclusion in any Form 8-K, and each
of the Servicer, the Special Servicer and the Trustee shall be indemnified and
held harmless by the Trust Fund against any loss, liability or expense incurred
in connection with any legal action relating to any statement or omission or
alleged statement or omission therein. None of the Trustee, the Special Servicer
and the Servicer shall have any responsibility or liability with respect to any
Exchange Act Report filed by the Depositor, and each of the Servicer, the
Special Servicer and the Trustee shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to any statement or omission or alleged statement or
omission therein.
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts
and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash Collateral
Account, Escrow Account and Reserve Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer (or, to the extent provided in Section 3.24(b), the
Trustee or the Fiscal Agent or to the extent specifically provided for in this
Agreement, the Special Servicer) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof. For purposes of
distributions to Certificateholders and compensation to the Servicer, Special
Servicer or Trustee, Property Advances shall not be considered to increase the
principal balance of any Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so provide.
(b) The Servicer shall notify the Trustee and the Fiscal Agent, and the
Special Servicer shall notify the Servicer, the Trustee and the Fiscal Agent, in
writing promptly upon, and in any event within one Business Day after, becoming
aware that it will be unable to make any Property Advance required to be made
pursuant to the terms hereof, and in connection therewith, shall set forth in
such notice the amount of such Property Advance, the Person to whom it will be
paid, and the circumstances and purpose of such Property Advance, and shall set
forth therein information and instructions for the payment of such Property
Advance, and, on the date specified in such notice for the payment of such
Property Advance, or, if the date for payment has passed or if no such date is
specified, then within five Business Days following such notice, the Trustee (or
with respect to a Property Advance required to be made by the Special Servicer,
the Servicer, and if the Servicer so fails, the Trustee), subject to the
provisions of Section 3.24(c), shall pay the amount of such Property Advance in
accordance with such information and instructions. If the Trustee fails to make
any Property Advance required to be made under this Section 3.24, the Fiscal
Agent, subject to the provisions of Section 3.24(c), shall make such Advance on
the same day the Trustee was required to make such Property Advance and,
thereby, the Trustee shall not be in default under this Agreement.
(c) None of the Servicer, the Trustee, the Fiscal Agent or the Special
Servicer shall be obligated to make a Property Advance as to any Mortgage Loan
or REO Property if the Servicer, the Trustee, the Fiscal Agent or the Special
Servicer, as applicable, determines that such Advance will be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent (or the Servicer with respect to a
Property Advance required to be made by the Special Servicer) shall be entitled
to rely, conclusively, on any determination by the Servicer or Special Servicer,
as applicable, that a Property Advance, if made, would be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent, in determining whether or not a
Property Advance previously made is, or a proposed Property Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Servicer hereunder.
(d) The Servicer, the Special Servicer, the Trustee and/or the Fiscal
Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Servicer and Special Servicer hereby
covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.25. Appointment of Special Servicer.
(a) CRIIMI MAE Services Limited Partnership will act as the initial Special
Servicer to service each Specially Serviced Mortgage Loan and perform the other
obligations of the Special Servicer hereunder.
(b) Certificateholders representing 51% of the Percentage Interests of the
most subordinate Class of Certificates outstanding at any time shall be entitled
to remove the Special Servicer with or without cause and to appoint a successor
Special Servicer, provided that each Rating Agency confirms to the Trustee in
writing that such appointment, in and of itself, would not have caused a
downgrade, qualification or withdrawal of the then current ratings assigned to
any Class of Certificates. If there is a Special Servicer Event of Default the
Special Servicer shall be removed and replaced pursuant to Sections 7.01(c) and
7.02.
(c) The appointment of any such successor Special Servicer, shall not
relieve the Servicer, the Trustee or the Fiscal Agent of their respective
obligations to make Advances as set forth herein; provided, however, the
Servicer shall not be liable for any actions or any inaction of such successor
Special Servicer. Any termination fee payable to the terminated Special Servicer
(and it is acknowledged that there is no such fee payable in the event of a
termination of the Servicer as Special Servicer or in the event of a termination
for breach of this Agreement) shall be paid by the Certificateholders so
terminating the Special Servicer and shall not in any event be an expense of the
Trust Fund.
(d) No termination of the Special Servicer and appointment of a successor
Special Servicer shall be effective until the successor Special Servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Servicer and Trustee, as evidenced in writing,
and the Trustee has received written confirmation from each Rating Agency that
such appointment would not cause any Rating Agency to qualify, withdraw or
downgrade any of its then current ratings on any Certificates. Any successor
Special Servicer shall make the representations and warranties provided for in
Section 2.04(a) mutatis mutandis.
SECTION 3.26. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Servicer shall immediately give notice thereof, to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (but excluding the original documents
constituting the Mortgage File) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its duties hereunder with respect thereto without acting through a
sub-servicer. The Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the date such Mortgage Loan
became a Specially Serviced Mortgage Loan and in any event shall continue to act
as Servicer and administrator of such Mortgage Loan until the Special Servicer
has commenced the servicing of such Mortgage Loan, which shall occur upon the
receipt by the Special Servicer of the information, documents and records
referred to in the preceding sentence. With respect to each Mortgage Loan that
becomes a Specially Serviced Mortgage Loan, the Servicer shall instruct the
related Borrower to continue to remit all payments in respect of such Mortgage
Loan to the Servicer. The Servicer and Special Servicer may agree that,
notwithstanding the preceding sentence, with respect to each Mortgage Loan that
became a Specially Serviced Mortgage Loan, the Servicer shall instruct the
related Borrower to remit all payments in respect of such Mortgage Loan to the
Special Servicer, provided that the payee in respect of such payments shall
remain the Servicer. The Special Servicer shall remit to the Servicer any such
payments received by it pursuant to the preceding sentence within one Business
Day of receipt. The Servicer shall forward any notices it would otherwise send
to the Borrower of a Specially Serviced Mortgage Loan to the Special Servicer
who shall send such notice to the related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Servicer, and upon giving such notice, such Mortgage Loan shall cease to be a
Specially Serviced Mortgage Loan in accordance with the first proviso of the
definition of Specially Serviced Mortgage Loan, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Servicer to service and administer such Mortgage Loan as a Mortgage Loan
that is not a Specially Serviced Mortgage Loan shall resume. In addition, if the
related Borrower has been instructed, pursuant to the last sentence of the
preceding paragraph, to make payments to the Special Servicer, upon such
determination, the Special Servicer shall instruct the related Borrower to remit
all payments in respect of such Mortgage Loan directly to the Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Servicer as well as copies of any analysis
or internal review prepared by or for the benefit of the Special Servicer.
(c) Not later than the Business Day preceding each date on which the
Servicer is required to furnish a report under Section 3.13(a) to the Trustee,
the Special Servicer shall deliver to the Trustee, with a copy to the Servicer,
a written statement describing, on a Mortgage Loan by Mortgage Loan basis, (i)
the amount of all payments on account of interest received on each Specially
Serviced Mortgage Loan, the amount of all payments on account of principal,
including Principal Prepayments, on each Specially Serviced Mortgage Loan, the
amount of Net Insurance Proceeds and Net Liquidation Proceeds received with
respect to each Specially Serviced Mortgage Loan, and the amount of net income
or net loss, as determined from management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any rental income that does not constitute Rents from Real Property
with respect to the REO Property relating to each applicable Specially Serviced
Mortgage Loan, in each case in accordance with Section 3.17 and (ii) such
additional information relating to the Specially Serviced Mortgage Loans as the
Servicer or Trustee reasonably requests to enable it to perform its duties under
this Agreement.
(d) Notwithstanding the provisions of the preceding subsection (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and shall provide the Special Servicer with
any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Servicer
with any information reasonably required by the Servicer to perform its duties
under this Agreement.
(e) The Servicer shall furnish to the Special Servicer a current copy of
any "watch list" that it maintains with respect to the Mortgage Loans.
SECTION 3.27. Interest Reserve Account.
(a) On each Servicer Remittance Date relating to any Interest Accrual
Period commencing in any January and on any Servicer Remittance Date relating to
any Interest Accrual Period commencing in any December which occurs in a year
immediately preceding a year which is not a leap year, the Servicer shall remit
to the Trustee, in respect of the Interest Reserve Loan, for deposit into the
Interest Reserve Account, an amount equal to one day's interest on the Stated
Principal Balance of the Interest Reserve Loan as of the Due Date occurring in
the month preceding the month in which such Servicer Remittance Date occurs at
the related Mortgage Rate, to the extent a full Monthly Payment or P&I Advance
is made in respect thereof (all amounts so deposited in any consecutive January
and February, "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer shall
withdraw from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January and December, if any, and deposit such amount
into the Distribution Account.
SECTION 3.28. Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan secured by
Mortgaged Properties located in a "one-action" state, the Servicer or Special
Servicer, as applicable, shall consult with legal counsel, the fees and expenses
of which shall be an expense of the Trust Fund.
(b) With respect to any Mortgage Loan which permits the related Borrower,
with the consent or grant of a waiver by mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, then the Special Servicer may only consent to either such action, or
grant a waiver with respect thereto, if the Special Servicer determines that
such consent or waiver is likely to result in a greater recovery on a present
value basis (discounted at the related Mortgage Rate) than would not consenting
to such action and the Special Servicer first obtains written confirmation from
each Rating Agency that such consent or grant of a waiver would not, in and of
itself, result in a downgrade, qualification or withdrawal of any of the then
current ratings assigned to the Certificates. The Servicer shall not be entitled
or required to consent to, or grant a waiver with respect to, either action.
(c) With respect to the Mortgage Loans that require the related Borrower to
pay Rating Agency monitoring or review fees, the Servicer shall enforce the
obligation of the related Borrowers to pay Rating Agency monitoring or review
fees and shall remit such fees from the related Cash Collateral Account for
payment of such fees to the applicable Rating Agencies. The Servicer shall
receive bills from the Rating Agencies for monitoring, review and surveillance
of the Certificates and the Mortgage Loans on behalf of Nomura Securities
International, Inc. and shall promptly notify and send such bills to Nomura
Securities International, Inc., Attention: Sheryl McAfee. Nomura Securities
International, Inc. will notify each Rating Agency to bill Nomura Securities
International, Inc. for such services and to send such bills to the Servicer.
Nomura Securities International, Inc. will pay such portion of the bill not paid
from funds provided by the applicable Borrowers (as described in this section
(c)) and the Servicer shall notify Nomura Securities International, Inc., of the
portion of the bill that it has paid from funds collected from such Borrowers.
(d) With respect to each Mortgage Loan listed on Exhibit N, the Servicer
shall require the related Borrower to fund the related Escrow Account for
replacement reserves in the amounts specified on Exhibit N.
(e) With respect to all Mortgage Loans that provide that the holder of the
related Note may apply the monthly payment against principal, interest and any
other sums due in the order as the holder shall determine, the Servicer shall
apply such Monthly Payment to interest (other than Excess Interest or Default
Interest) under the related Mortgage Loan prior to application to principal or
any other sums due.
(f) With respect to the Mortgage Loans that have Anticipated Repayment
Dates, the Servicer (including the Servicer in its capacity as a
Certificateholder, if applicable), shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the maturity date of the related Mortgage Loan.
(g) To the extent not inconsistent with the related Mortgage Loan, the
Servicer shall not consent to a change of franchise affiliation with respect to
a Mortgaged Property unless it obtains written confirmation from Fitch and
Moody's that such consent would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates.
(h) With respect to any Mortgage Loan secured by a senior
housing/healthcare facility, the Special Servicer shall hire a consultant which
is experienced in the operation of such facilities in the event that such
Mortgage Loan becomes a Specially Serviced Mortgaged Loan.
(i) With respect to the Mortgage Loans that have Anticipated Repayment
Dates, the Servicer shall be permitted, in its discretion, to waive all or any
accrued Excess Interest if, prior to the related maturity date, the related
Borrower has requested the right to prepay the Mortgage Loan in full together
with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Excess Interest, provided that
the Servicer's determination to waive the right to such accrued Excess Interest
is reasonably likely to produce a greater payment to Certificateholders on a
present value basis than a refusal to waive the right to such Excess Interest.
Any such waiver shall not be effective until such prepayment is tendered. The
Servicer will have no liability to the Trust Fund, the Certificateholders or any
other person so long as such determination is based on such criteria. Other than
pursuant to Section 3.30, the Special Servicer shall have no right to waive the
payment of Excess Interest under the circumstances described in this Section
3.28(i).
(j) With respect to the Mortgage Loans that (i) require earthquake
insurance, or (ii) (A) at the date of origination were secured by Mortgaged
Properties on which the related Borrower maintained earthquake insurance and (B)
have provisions which enable the Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of clause
(i), required by the Mortgage Loan and in the amount, in the case of clause
(ii), maintained at origination, in each case, to the extent such amounts are
available at commercially reasonably rates.
(k) The Servicer shall send written notice to each Borrower and the related
Manager and clearing bank that, if applicable, the Servicer and/or the Trustee
has been appointed as the "Designee" of the "Lender" under any related Lock-Box
Agreement.
(l) With respect to the Mortgage Loan known as Arrowhead Village loan, in
no event shall the Trustee, the Servicer or the Special Servicer exercise the
rights of the "Lender" thereunder to convert all or a portion of the related
Mortgage Loan into a preferred equity investment.
(m) No more than 90 days prior to the Maturity Date with respect to the
Mortgage Loan identified as the Mariner's Village loan (the "Mariner's Village
Loan") the Special Servicer shall request written confirmation from the related
Borrower as to whether such Borrower intends to pay the outstanding principal
balance of the Mariner's Village Loan on its Maturity Date. If after receipt of
a response from such Borrower, the Special Servicer determines that a default on
the related Maturity Date is reasonably foreseeable, the Special Servicer shall
notify the Borrower thereunder that the Special Servicer would agree to extend
the Maturity Date of the Mariner's Village Loan until the Due Date that is at
least 240 months from the date of the origination of such loan if such Borrower
agrees that the terms of the Mariner's Village Loan shall be modified to provide
for terms substantially similar to those provided for in Mortgage Loans for
which there is an Anticipated Repayment Date (including the payment of Excess
Interest, at a rate not to exceed the related Default Rate, and application of
excess cash flow from the Mortgaged Property to prepay the Mariner's Village
Loan).
(n) For any Specially Serviced Mortgage Loan and with respect to which,
under the terms of the related Loan Documents, the mortgagee may, in its
discretion, apply Insurance Proceeds, condemnation awards or escrowed funds to
the prepayment of such loan prior to the expiration of the related Lock-out
Period, the Special Servicer may only make such a prepayment if the Special
Servicer has first received (i) the prior written consent of the Servicer (which
consent will be given or withheld in accordance with the Servicing Standard) or
(ii) the affirmative vote in favor of such prepayment from 66 2/3% of the Voting
Rights of all Certificateholders or 66 2/3% of the Voting Rights of all
Certificateholders responding within 20 Business Days of being given notice by
the Trustee of such proposed action. Upon the written request of the Special
Servicer, the Trustee shall forward Certificateholders any request of the
Special Servicer for the vote of the Certificateholders pursuant to this
Section.
(o) If any Mortgage Loan provides that the "Lender" with respect thereto is
required to purchase U.S. government obligations on behalf of the related
Borrower in connection with any defeasance of the related Note, the Servicer
shall purchase such obligations and effectuate such defeasance, at the
Borrower's expense, in accordance with the provisions of the related Loan
Documents, consistent with the Servicing Standard.
(p) With respect to the Mortgage Loan secured by the Mortgaged Property
identified as the Hyatt Riverwalk-San Antonio on the Mortgage Loan Schedule, the
Servicer may, consistent with the Servicing Standard, allocate amounts to the
"Incentive Management Fee Subaccount" of the trust account established pursuant
to the Deposit Account Agreement relating to such Mortgage Loan in addition to
those set forth in any "Monthly Hotel Management Fee Requisition" (as defined
therein).
(q) On each Servicer Remittance Date, the Servicer shall withdraw from the
Collection Account an amount equal to the product of (i) the "Participation
Percentage" (as defined in the Anchorage Participation Agreement) and (ii) the
amount of each Monthly Payment on the Anchorage Loan and remit such amount to
the Other Participant on the following Distribution Date as provided in the
Anchorage Participation Agreement. Nothing in this Agreement shall be deemed to
override the provisions of the Anchorage Participation Agreement with respect to
the rights of the Other Participant thereunder, including the rights of the
Other Participant with respect to its allocable share of any Net Liquidation
Proceeds, Insurance Proceeds or condemnation award. The Servicer or the Special
Servicer, as applicable, shall exercise the rights of the "Lead Lender" under
the Anchorage Participation Agreement in accordance with the Servicing Standard
and shall act with respect to the Anchorage Loan as if such loan were a Mortgage
Loan hereunder provided that, for purposes hereof, Monthly Payments, P&I
Advances and Assumed Scheduled Payments shall refer only to the "Participation
Percentage" (as defined in the Anchorage Participation Agreement) of such
amounts with respect to the Anchorage Loan.
SECTION 3.29. Residual Trigger Date.
The Servicer shall give prompt written notice to Nomura Securities
International, Inc. of each release of a Mortgaged Property pursuant to
defeasance with U.S. government obligations pursuant to the terms of the related
Mortgage Loan and the percentage of the aggregate then outstanding principal
balance of the Mortgage Loans that is secured by U.S. government obligations
after giving effect to such release. Upon the occurrence of the Residual Trigger
Date, the Servicer shall give prompt written notice thereof to the Trustee, the
Depositor and Nomura Securities International, Inc. Notice to Nomura Securities
International, Inc. shall be sent to:
Nomura Securities International, Inc.
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Sheryl McAfee and Perry Gershon
SECTION 3.30. Modification, Waiver, Amendment and Consents.
(a) The Special Servicer may, consistent with the Servicing Standard, agree
to any modification, waiver or amendment of any term of any Mortgage Loan,
subject, however, to each of the following limitations, conditions and
restrictions:
(i) the Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any action with respect to, any
Mortgage Loan, if such modification, waiver or amendment relates to
any payment term thereof, the release of the related Borrower from any
material term thereunder or the release or substitution of collateral
therefor except in accordance with clause (b) or (c) of this Section
3.30; and
(ii) the Special Servicer shall not consent to the modification of any term
of a Mortgage Loan pursuant to this clause (a), or otherwise alter,
delete or add, in whole or in part, any legal right or obligation of
the related Borrower or the Trustee, as holder of the related Mortgage
Loan, unless such modification would not be a "significant
modification" as such term is defined in Code Section 1001 and
applicable Treasury Regulations thereunder or Treasury Regulations
Section 1.860G-2(b)(3).
(b) The Special Servicer may, consistent with the Servicing Standard, agree
to any modification, waiver or amendment of any term of, forgive or defer
interest on and principal of, and/or add collateral for, any Mortgage Loan with
the consent of Certificateholders representing 100% of the Percentage Interests
of the most subordinate Class of Certificates then outstanding determined as
provided below, subject, however, to each of the following limitations,
conditions and restrictions:
(i) a material default on such Mortgage Loan has occurred or, in the
Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable,
and such modification, waiver, amendment or other action is reasonably
likely to produce a greater recovery to Certificateholders on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders will be
done at the related Mortgage Rate), than would liquidation;
(ii) the Special Servicer shall not extend the date on which any Balloon
Payment is scheduled to be due on any Specially Serviced Mortgage Loan
except as provided for below;
(iii)no reduction of any scheduled monthly payment of principal and/or
interest on any Specially Serviced Mortgage Loan may result in a debt
service coverage ratio for such Mortgage Loan of greater than 1.10 to
1, and the Special Servicer may only agree to reductions lasting a
period of no more than twelve consecutive months and, in the
aggregate, no more than three consecutive reductions of twelve-months
or less each;
(iv) the Special Servicer shall not release or substitute collateral or
release mortgagors or guarantors except as provided in clause (v)
below;
(v) the Special Servicer may only allow a substitution of collateral and
the assumption of a Borrower's obligations with respect to a Mortgage
Loan in accordance with the terms thereof and the provisions of
Section 3.09 hereof;
(vi) the Special Servicer may not forgive an aggregate amount of principal
of the Mortgage Loans in excess of the Certificate Principal Balance
of the most subordinate Class of Certificates then outstanding (as
determined as provided below) minus the aggregate of the greater of
(A) any Appraisal Reduction Amounts and (B) Delinquency Reduction
Amounts of each Mortgage Loan that, in each case, have not resulted in
a Realized Loss;
(vii)the Special Servicer shall not permit any Borrower to add any
collateral unless (A) the Special Servicer has first determined in
accordance with the Servicing Standard, based upon an environmental
assessment prepared by an Independent Person who regularly conducts
environmental assessments, at the expense of the Borrower, that such
additional collateral is in compliance with applicable environmental
laws and regulations and that there are no circumstances or conditions
present with respect to such new collateral relating to the use,
management or disposal of any hazardous materials for which
investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental
laws and/or regulations and (B) the Special Servicer has received an
Opinion of Counsel at the expense of the Special Servicer or the
Borrower (unless the Special Servicer owns the most subordinate Class
of Certificates in which case, at the expense of the Trust Fund), to
the effect that the addition of such collateral will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC or cause a tax to be imposed on the Trust Fund under the REMIC
Provisions; and
(viii) the Special Servicer may waive or reduce a Lock-out Period or any
Prepayment Premiums only if the commencement of a foreclosure
proceeding with respect to the related Mortgage Loan is imminent and
the Special Servicer first receives written notification from the
Servicer that such action in the opinion of the Servicer, consistent
with the Servicing Standard and based solely upon information
furnished by the Special Servicer without independent investigation of
the Servicer thereof, is more likely to result in a greater recovery,
on a present value basis, than would a foreclosure.
Notwithstanding the foregoing, the Special Servicer shall not be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Borrower if in its reasonable and good faith judgment such
opposition would not (i) ultimately prevent the confirmation of such plan or one
substantially similar and (ii) produce a greater recovery to Certificateholders
on a present value basis.
For purposes of determining the amount of principal which the Special
Servicer may forgive pursuant to clause (vi) above, the most subordinate Class
shall include the next subordinate Class (determined as provided in the
preceding sentence) provided that Certificateholders evidencing 100% of the
Percentage Interests of such Class consent to such forgiveness.
(c) Following a default by a Borrower in the payment of a Balloon Payment
on the related Maturity Date, or if the Special Servicer reasonably determines
that a default with respect to such Balloon Loan is imminent the Special
Servicer may elect to grant a one-year extension of such Balloon Loan; provided
that the Special Servicer may only extend such Balloon Loan if (i) immediately
prior to the default on the Balloon Payment the related Borrower had made twelve
consecutive Monthly Payments on or prior to their Due Dates, (ii) the Special
Servicer determines in its reasonable judgment that such Borrower has attempted
in good faith to refinance such Balloon Loan or Mortgaged Property, (iii) the
Special Servicer determines that (A) extension of such Balloon Loan is
consistent with the Servicing Standard and (B) extension of such Mortgage Loan
is likely to result in a recovery which on a net present value basis would be
greater than the recovery that would result from a foreclosure, (iv) such
extension requires that all cash flow on all related Mortgaged Property or
Properties in excess of amounts required to operate and maintain such Mortgaged
Property or Properties be applied to payments of principal and interest on such
Balloon Loan and (v) the Special Servicer terminates the related Manager unless
the Special Servicer determines that retaining such Manager is conducive to
maintaining the value of the related Mortgaged Properties; provided, further,
the Special Servicer shall provide notice to the Trustee (and the Trustee hereby
agrees to forward such notice immediately upon receipt to each
Certificateholder) that the Special Servicer has elected to extend the Balloon
Loan and submit a case to the Servicer (an "Extension Case") and if (A) the
Servicer, based on such Extension Case but without any independent investigation
thereof, concurs with such Extension Case but Holders of Certificates evidencing
at least 66-2/3% of the Percentage Interests of each Class of Certificates
entitled to vote direct the Special Servicer not to extend or (B) the Servicer,
based on such Extension Case and without any independent investigation thereof,
does not concur with such Extension Case and Holders of Certificates evidencing
greater than (x) 50% of the aggregate Voting Rights of all Certificateholders
entitled to vote and (y) 66-2/3% of the aggregate Voting Rights of all
Certificateholders entitled to vote who respond to such notice within 30 days,
direct the Special Servicer not to extend, then the Special Servicer shall not
extend.
The Special Servicer may, consistent with the Servicing Standard, grant
subsequent one-year extensions of such Balloon Loan if (i) the related Borrower
has made twelve consecutive Monthly Payments in an amount equal to or greater
than the Minimum Defaulted Monthly Payments, (ii) the requirements set forth in
clauses (ii) - (iv) of the preceding paragraph are satisfied; provided, however,
the Special Servicer shall provide notice to the Trustee (and the Trustee hereby
agrees to forward such notice immediately upon receipt to each
Certificateholder) that the Special Servicer has elected to extend the Balloon
Loan and submit an Extension Case to the Servicer and if (A) the Servicer, based
on such Extension Case but without any independent investigation thereof,
concurs with such Extension Case but Holders of Certificates evidencing at least
66-2/3% of the Percentage Interests of each Class of Certificates entitled to
vote direct the Special Servicer not to extend or (B) the Servicer, based on
such Extension Case and without any independent investigation thereof, does not
concur with such Extension Case and Holders of Certificates evidencing greater
than (x) 50% of the aggregate Voting Rights of all Certificateholders entitled
to vote and (y) 66-2/3% of the aggregate Voting Rights of all Certificateholders
entitled to vote who respond to such notice within 30 Business Days, direct the
Special Servicer not to extend, then the Special Servicer shall not extend. If
the related Borrower fails to make a timely Minimum Defaulted Monthly Payment
more than once during any two year period after an extension of a Balloon Loan,
no further extensions will be granted.
During the 30 day period after notice of a proposed extension of a Balloon
Loan has been given, each of the Servicer and Special Servicer shall be
permitted to communicate with the Certificateholders regarding its respective
position with respect to such extension. Notwithstanding the foregoing, the
Special Servicer shall not agree to any extension of a Mortgage Loan beyond the
Rated Final Distribution Date. Notwithstanding the foregoing, the Special
Servicer may extend a defaulted payment due on the Maturity Date of a Balloon
Loan and grant subsequent extensions pursuant to the Instructions of the
Directing Holders (as described in paragraph (d) below). The Servicer shall
within five Business Days after receipt of an Extension Case from the Special
Servicer, give the Special Servicer written notice as to whether or not it
concurs with the extension set forth in such Extension Case. The Special
Servicer shall provide the necessary information and back-up material for the
Servicer to determine whether it would extend prior to sending any such notice
to the Trustee. The Special Servicer will notify the Servicer of any Mortgage
Loan with respect to which the Borrower has indicated in writing an intent to
request an extension.
The Holders of the Class A-CS1 and Class A-CS2 Certificates shall not be
entitled to vote with respect to proposed extensions of a Balloon Loan.
Any extension of a Balloon Loan pursuant to this Section will require
monthly payments in an amount equal to or greater than the Minimum Defaulted
Monthly Payment.
(d) The Special Servicer may be given revocable instructions
("Instructions") (with a copy to the Servicer) to extend a Specially Serviced
Mortgage Loan that has defaulted on a Balloon Payment (which extension shall be
conditioned on the requirements of clauses (ii)-(iv) of Section 3.30(c) above
except that such Instructions shall not be subject to the rejection of the other
Certificateholders and the related Borrower will not be required to have made
twelve consecutive Monthly Payments on or prior to the Due Date) by the Holders
of Certificates representing greater than 50% of the Voting Rights of the most
subordinate Class or Classes of Certificates then outstanding representing a
minimum of 2.5% of the aggregate initial Certificate Balances of all Classes of
Certificates (or if the Certificate Balance of such Class or Classes has been
reduced to less than 40% of its initial Certificate Balance, the holders of such
Class together with the Holders of the next most subordinate Class) (the
"Directing Holders") under the following circumstance:
(i) If the Special Servicer has determined to commence foreclosure or
acquisition proceedings, the Special Servicer shall notify the Trustee (and
the Trustee hereby agrees to notify Directing Holders ), the Depositor and
the Servicer of its proposed action;
(ii) If the Special Servicer receives contrary Instructions from the
Directing Holders within seven days after notice was given to the Directing
Holders (and the Trustee hereby agrees to forward to the Special Servicer
promptly any Instructions provided by the Directing Holders), the Special
Servicer will delay such proceedings, and the procedures described below
shall apply to the servicing of such Mortgage Loan; and
(iii) In the event that the Special Servicer does not receive such
Instructions within such seven-day period, the Special Servicer may proceed
in connection with the foreclosure or acquisition in a manner consistent
with the Servicing Standard.
If the Directing Holders revoke their Instructions to extend the Mortgage Loan,
the Special Servicer shall service the Mortgage Loan without regard to such
original Instructions; provided, however, that the Directing Holders shall be
required to maintain the Collateral Account in accordance with this Section 3.30
unless and until the Mortgage Loan is no longer a Specially Serviced Mortgage
Loan for nine consecutive months or has been liquidated; and provided, further,
that any such foreclosure shall be subject to the provisions of Section 3.10.
(e) If the Special Servicer receives Instructions and the Servicer has not
otherwise been required to obtain an Updated Appraisal as described in Section
3.10 above within the preceding twelve month period, the Special Servicer shall
notify the Servicer and the Servicer shall as soon as reasonably practicable
obtain an Updated Appraisal of the Mortgaged Property (the cost of which shall
be paid by the Servicer as a Property Advance), in order to determine the fair
market value of such Mortgaged Property, after accounting for the estimated
liquidation and carrying costs (the "Fair Market Value" of such Mortgaged
Property). Within two Business Days after the Special Servicer's receipt of
Instructions, the Servicer shall establish a segregated account (the "Collateral
Account") and the Directing Holders shall deposit therein (at the Servicer's
request), in proportion to their respective Percentage Interests, an amount
equal to the lesser of (i) 125% of the Fair Market Value of the related
Mortgaged Property and (ii) the outstanding principal balance of the Mortgage
Loan plus unreimbursed Advances (with interest thereon at the Advance Rate) and
unpaid accrued interest (the "Deposit"). If no Updated Appraisal has yet been
obtained, the amount of the Deposit will be determined based on the Servicer's
estimate of the Fair Market Value of the Mortgaged Property, in which case, upon
the Servicer's receipt of such Updated Appraisal, the Servicer shall remit any
excess deposit to the Directing Holders, or the Directing Holders will deposit
in the Collateral Account any shortfall, as the case may be. In the event that
the Directing Holders do not make the required deposit within two Business Days
following the Special Servicer's receipt of Instructions, the Special Servicer
shall act in accordance with the Servicing Standard without regard to such
Instructions. The Directing Holders shall be deemed to have granted to the
Servicer for the benefit of Certificateholders a first priority security
interest in the Collateral Account, as security for the obligations of the
Directing Holders.
If the Special Servicer is acting pursuant to Instructions, the Servicer
shall withdraw from the Collateral Account and deposit into the Collection
Account on or prior to the Business Day preceding each Servicer Remittance Date
an amount equal to the sum of (i) the Minimum Defaulted Monthly Payment on the
related Balloon Loan and (ii) any Property Protection Expenses or any expenses
incurred to protect and preserve the security for a Mortgage Loan or taxes and
assessments or insurance premiums (without regard to a non-recoverability
determination), and the Directing Holders shall, upon request therefor by the
Servicer, deposit from their own funds into the Collateral Account the amount of
such P&I Advance or Property Advance. Such withdrawals shall be reimbursed, with
interest, at the Advance Rate (but in no event greater than the Default Rate on
the related Mortgage Loan), and shall be recoverable only from funds recovered
from the related Mortgage Loan (whether pursuant to liquidation or the Mortgage
Loan being brought current) but only after such funds have been applied to the
purposes set forth in Section 3.06(i)-(x). If the Directing Holders fail to make
such deposit within one (1) Business Day after receipt of the Servicer's
request, the Special Servicer shall no longer be required to follow such
Instructions and shall specially service such Mortgage Loan as though no
Instructions had been given; provided, however, that the Directing Holders shall
be required to maintain the Collateral Account in accordance with the
requirements of this Section 3.30 unless and until the related Mortgage Loan is
no longer a Specially Serviced Mortgage Loan for nine consecutive months or has
been liquidated. The Servicer shall invest amounts on deposit in the Collateral
Account in Permitted Investments upon direction by the Directing Holders.
Directing Holders shall be entitled to reinvestment income as received, and will
reimburse the Collateral Account for any losses incurred. Any Collateral Account
established hereunder will be an "outside reserve fund" beneficially owned by
the related Directing Holders for federal income tax purposes, and any amounts
paid or reimbursed from the Upper-Tier REMIC or Lower-Tier REMIC to the
Collateral Account will be treated as paid to the Directing Holders as
beneficial owners.
(f) If a Balloon Loan or the related Mortgaged Property which is subject to
Instructions is liquidated or disposed of all Net Liquidation Proceeds shall be
deposited in the Collection Account and the Servicer shall withdraw from the
Collateral Account, and deposit into the Collection Account as additional
Liquidation Proceeds for distribution to Certificateholders the lesser of (a)
the amount by which 125% of the Fair Market Value (determined at the time of the
Deposit) (plus accrued and unpaid interest, accumulated carrying costs and
conveyance expenses) exceeds the net sales proceeds, and (b) the amount by which
the outstanding principal balance of the related Mortgage Loan plus unreimbursed
Advances (with interest thereon) and unpaid accrued interest exceeds the net
sales proceeds, provided that in no event shall such additional Liquidation
Proceeds exceed the unpaid principal balance, accrued and unpaid interest
(including Default Interest), unpaid Advances made by the Servicer, Special
Servicer, Trustee or Fiscal Agent and interest thereon, and any expenses paid by
the Trust Fund with respect to such Mortgage Loan.
If the amount realized upon disposition of the Mortgage Loan or Mortgaged
Property exceeds 125% of the Fair Market Value, the Servicer shall deposit the
excess in the Collection Account to the extent not required by applicable law to
be paid to the related Borrower. If the Mortgage Loan has not been sold,
liquidated or disposed of on or before the third anniversary of the Instructions
(or such earlier date so that the Trust Fund owns the Mortgaged Property for no
longer than the period permitted by Section 3.17(a)), the Directing Holders
shall immediately purchase the Mortgage Loan for a purchase price equal to Fair
Market Value (determined at the time of the Deposit) plus accrued and unpaid
interest, accumulated carrying costs and conveyance expenses and, in connection
therewith, amounts then on deposit in the Collateral Account shall be applied
first in payment of such purchase price. For purposes of this paragraph, if the
Updated Appraisal is dated more than twelve months prior to the date on which
such purchase is to occur, then the Servicer shall obtain an Updated Appraisal
upon which the calculation of Fair Market Value shall be based and the term
"Fair Market Value" for purposes of the purchase price and the first paragraph
of this section (d) shall be the greater of (i) the Fair Market Value calculated
at the time the Instructions were first given and (ii) the Fair Market Value
calculated in connection with the referenced Updated Appraisal, provided that in
no event shall such price exceed the unpaid principal balance, accrued interest
(including Default Interest), unpaid Advances made by the Servicer, Special
Servicer, Trustee or Fiscal Agent, and interest thereon and expenses paid by the
Trust Fund with respect to such Mortgage Loan.
If at any time following the establishment of a Collateral Account and
prior to the disposition of the Specially Serviced Mortgage Loan or Mortgaged
Property, the Mortgaged Property suffers a hazard loss that results in the
Mortgaged Property not being rebuilt and payments to the Trustee are made under
the related hazard insurance policy, the Servicer shall pay all amounts on
deposit in the Collateral Account to the Directing Holders. In addition, after
amounts required to be deposited in the Collection Account as set forth above
have been withdrawn from the Collateral Account following foreclosure,
liquidation, disposition, purchase by Directing Holders, or if the related
Mortgage Loan is no longer a Specially Serviced Mortgage Loan for nine
consecutive months, any remaining amounts in the Collateral Account shall be
released to the Directing Holders.
(h) Until the disposition of the Specially Serviced Mortgage Loan or
Mortgaged Property as to which Directing Holders have provided Instructions or
the cure of such default, no P&I Advances shall be made in respect of amounts
otherwise distributable to the Class of the Directing Holders in respect of such
Mortgage Loan. The Trustee shall notify the Servicer at least five Business Days
prior to the Servicer Remittance Date of the amount of distributions to be made
to the Directing Holders on the related Distribution Date.
(i) The Special Servicer shall provide copies of any modifications or
extensions to each Rating Agency. All modifications, waivers, amendments and
other actions entered into or taken in respect of the Mortgage Loans pursuant to
this Section 3.30 shall be in writing. The Special Servicer shall notify the
Servicer and the Trustee, in writing, of any modification, waiver, amendment or
other action entered into or taken in respect of any Mortgage Loan pursuant to
this Section 3.30, prior to the effective date thereof and the date as of which
the related modification, waiver or amendment is to take effect, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the Servicer) an original counterpart of the
agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within 10 Business Days) following the execution
thereof. Following the execution of any modification, waiver or amendment agreed
to by the Special Servicer pursuant to the clause (a) or (b)(i) above, the
Special Servicer shall deliver to the Trustee (with a copy to the Servicer) an
Officer's Certificate setting forth in reasonable detail the basis of the
determination made by it pursuant to clause (a) or (b)(i) above.
(j) If a modification, waiver or amendment results, in and of itself, in
the withdrawal, downgrade or qualification of any of the then-current ratings
assigned to any Class of Certificates (not including the Class of Certificates,
if any, that consented to such actions), then the Special Servicer shall be
terminated and shall be replaced pursuant to Section 7.02.
(k) Any payment of interest which is deferred as described herein shall
not, for purposes, including, without limitation, of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit or that such interest may actually be capitalized.
(l) Except as otherwise specifically provided for herein, (i) the Special
Servicer shall not modify any payment term of any Mortgage Loan, consent to the
release or substitution of any collateral for such Mortgage Loan or otherwise
alter, delete or add, in whole or in part, any legal right or obligation of the
Borrower or the Trustee as holder of such Mortgage Loan, unless such
modification would not be a "significant modification" as such term is defined
in Code Section 1001 and applicable Treasury Regulations thereunder or Treasury
Regulations Section 1.860G-2(b)(3) and (ii) the Servicer shall not be entitled
or required to modify, amend or extend any provision of any Mortgage Loan.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, to the extent of Available Funds, amounts
held in the Distribution Account shall be withdrawn and paid in the following
amounts:
(i) First, pro rata, from Available Funds in respect of interest:
(A) to the Class A-1A-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1A
Pass-Through Rate on the Certificate Balance of the Class A-1A-L
Interest;
(B) to the Class A-1A-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1A Strip
Pass-Through Rate on the Component Balance of the Class A-1A-L
Interest;
(C) to the Class A-1B-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1B
Pass-Through Rate on the Certificate Balance of the Class A-1B-L
Interest;
(D) to the Class A-1B-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1B Strip
Pass-Through Rate on the Component Balance of the Class A-1B-L
Interest;
(E) to the Class A-1C-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1C
Pass-Through Rate on the Certificate Balance of the Class A-1C-L
Interest;
(F) to the Class A-1C-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1C Strip
Pass-Through Rate on the Component Balance of the Class A-1C-L
Interest;
(G) to the Class A-1D-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-1D Strip
Pass-Through Rate on the Component Balance of the Class A-1D-L
Interest;
(H) to the Class A-2-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-2 Strip
Pass-Through Rate on the Component Balance of the Class A-2-L
Interest;
(I) to the Class A-3-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-3 Strip
Pass-Through Rate on the Component Balance of the Class A-3-L
Interest; and
(J) to the Class A-4-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-4 Strip
Pass-Through Rate on the Component Balance of the Class A-4-L
Interest.
(K) to the Class A-5-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-5 Strip
Pass-Through Rate on the Component Balance of the Class A-5-L
Interest;
(ii) Second, pro rata, from Available Funds in respect of interest:
(A) to the Class A-1A-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(A)
previously allocated thereto in respect of the Certificate
Balance of the Class A-1A-L Interest;
(B) to the Class A-1A-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(B)
previously allocated thereto in respect of the Component Balance
of the Class A-1A-L Interest;
(C) to the Class A-1B-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(C)
previously allocated thereto in respect of the Certificate
Balance of the Class A-1B-L Interest;
(D) to the Class A-1B-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(D)
previously allocated thereto in respect of the Component Balance
of the Class A-1B-L Interest;
(E) to the Class A-1C-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(E)
previously allocated thereto in respect of the Certificate
Balances of the Class A-1C-L Interest;
(F) to the Class A-1C-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(F)
previously allocated thereto in respect of the Component Balance
of the Class A-1C-L Interest;
(G) to the Class A-1D-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(G)
previously allocated thereto in respect of the Component Balance
of the Class A-1D-L Interest;
(H) to the Class A-2-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(H)
previously allocated thereto in respect of the Component Balance
of the Class A-2-L Interest;
(I) to the Class A-3-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(I)
previously allocated thereto in respect of the Component Balance
of the Class A-3-L Interest;
(J) to the Class A-4-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(J)
previously allocated thereto in respect of the Component Balance
of the Class A-4-L Interest; and
(K) to the Class A-5-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(K)
previously allocated thereto in respect of the Component Balance
of the Class A-5-L Interest.
(iii)Third, prior to the Cross-over Date, to the Class A-1A-L Interest, in
reduction of the Certificate Balance thereof, an amount up to the
Principal Distribution Amount until the Certificate Balance thereof is
reduced to zero;
(iv) Fourth, prior to the Cross-over Date and after the Certificate Balance
of the Class A-1A-L Interest has been reduced to zero, to the Class
A-1B-L Interest, in reduction of the Certificate Balance thereof, the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance thereof is reduced to zero;
(v) Fifth, prior to the Cross-over Date and after the Certificate Balance
of the Class A-1B-L Interest has been reduced to zero, to the Class
A-1C-L Interest, in reduction of the Certificate Balance thereof, the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance thereof is reduced to zero;
(vi) Sixth, on and after the Cross-over Date, pro rata, to the Class
A-1A-L, Class A-1B-L and Class A-1C-L Interests, in reduction of the
respective Certificate Balances thereof, an amount up to the Principal
Distribution Amount until the respective Certificate Balances thereof
are reduced to zero;
(vii)Seventh, on and after the Cross-over Date, pro rata, to the Class
A-1A-L, Class A-1B-L and Class A-1C-L Interests, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less portions thereof distributed on
such Distribution Date pursuant to any preceding clause, an amount
equal to the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interests;
(viii) Eighth, to the Class A-1D-L Interest, in respect of interest, up to
an amount equal to interest for the related Interest Accrual Period at
the Class A-1D Pass-Through Rate on the Certificate Balance of the
Class A-1D-L Interest;
(ix) Ninth, to the Class A-1D-L Interest, up to an amount equal to the sum
of (A) an amount equal to the aggregate unpaid Interest Shortfalls in
respect of clause (viii) previously allocated thereto in respect of
the Certificate Balance of the Class A-1D-L Interest, (B) an amount
equal to the Class A-1D Component Reduction Interest Distribution
Amount, and (C) an amount equal to the aggregate unpaid Class A-1D
Component Reduction Interest Shortfalls allocated thereto in respect
of the Class A-1D Component, pro rata;
(x) Tenth, after the Certificate Balances of the Class A-1A-L, Class
A-1B-L and Class A-1C-L Interests have been reduced to zero, to the
Class A-1D-L Interest, in reduction of the Certificate Balance
thereof, the Principal Distribution Amount less the portion thereof
distributed on such Distribution Date pursuant to any preceding
clause, until the Certificate Balance thereof is reduced to zero;
(xi) Eleventh, to the Class A-1D-L Interest, for the unreimbursed amounts
of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount less portions thereof distributed on such
Distribution Date pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xii)Twelfth, to the Class A-2-L Interest, in respect of interest, up to
an amount equal to interest for the related Interest Accrual Period at
the Class A-2 Pass-Through Rate on the Certificate Balance of the
Class A-2-L Interest;
(xiii) Thirteenth, to the Class A-2-L Interest, up to an amount equal to
the sum of (A) an amount equal to the aggregate unpaid Interest
Shortfalls in respect of clause (xii) previously allocated thereto in
respect of the Certificate Balance of the Class A-2-L Interest, (B) an
amount equal to the Class A-2 Component Reduction Interest
Distribution Amount, and (C) an amount equal to the aggregate unpaid
Class A-2 Component Reduction Interest Shortfalls allocated thereto in
respect of the Class A-2 Component, pro rata;
(xiv)Fourteenth, after the Certificate Balance of the Class A-1D-L
Interest has been reduced to zero, to the Class A-2-L Interest, in
reduction of the Certificate Balance thereof, up to an amount equal to
the Principal Distribution Amount less the portion thereof distributed
on such Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class A-2-L Interest is reduced to zero;
(xv) Fifteenth, to the Class A-2-L Interest, for the unreimbursed amounts
of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount less portions thereof distributed on such
Distribution Date pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xvi)Sixteenth, to the Class A-3-L Interest, in respect of interest, up to
an amount equal to interest for the related Interest Accrual Period at
the Class A-3 Pass-Through Rate on the Certificate Balance of the
Class A-3-L Interest;
(xvii) Seventeenth, to the Class A-3-L Interest, up to an amount equal to
the sum of (A) an amount equal to the aggregate unpaid Interest
Shortfalls in respect of clause (xvi) previously allocated thereto in
respect of the Certificate Balance of the Class A-3-L Interest, (B) an
amount equal to the Class A-3 Component Reduction Interest
Distribution Amount, and (C) an amount equal to the aggregate unpaid
Class A-3 Component Reduction Interest Shortfalls allocated thereto in
respect of the Class A-3 Component, pro rata;
(xviii) Eighteenth, after the Certificate Balance of the Class A-2-L
Interest has been reduced to zero, to the Class A-3-L Interest, in
reduction of the Certificate Balance thereof, an amount up to the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class A-3-L Interest is reduced to zero;
(xix)Nineteenth, to the Class A-3-L Interest, for the unreimbursed amounts
of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount less portions thereof distributed on such
Distribution Date pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xx) Twentieth, to the Class A-4-L Interest, in respect of interest, up to
an amount equal to interest for the related Interest Accrual Period at
the Class A-4 Pass-Through Rate on the Certificate Balance of the
Class A-4-L Interest;
(xxi)Twenty-first, to the Class A-4-L Interest, up to an amount equal to
the sum of (A) an amount equal to the aggregate unpaid Interest
Shortfalls in respect of clause (xx) previously allocated thereto in
respect of the Certificate Balance of the Class A-4-L Interest, (B) an
amount equal to the Class A-4 Component Reduction Interest
Distribution Amount, and (C) an amount equal to the aggregate unpaid
Class A-4 Component Reduction Interest Shortfalls allocated thereto in
respect of the Class A-4 Component, pro rata;
(xxii) Twenty-second, after the Certificate Balance of the Class A-3-L
Interest has been reduced to zero, to the Class A-4-L Interest, in
reduction of the Certificate Balance thereof, an amount up to the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class A-4-L Interest is reduced to zero;
(xxiii) Twenty-third, to the Class A-4-L Interest, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less portions thereof distributed on
such Distribution Date pursuant to all prior clauses, an amount equal
to the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xxiv) Twenty-fourth, to the Class A-5-L Interest, in respect of interest,
up to an amount equal to interest for the related Interest Accrual
Period at the Class A-5 Pass-Through Rate on the Certificate Balance
of the Class A-5-L Interest;
(xxv)Twenty-fifth, to the Class A-5-L Interest, up to an amount equal to
the sum of (A) an amount equal to the aggregate unpaid Interest
Shortfalls in respect of clause (xxiv) previously allocated thereto in
respect of the Certificate Balance of the Class A-5-L Interest, (B) an
amount equal to the Class A-5 Component Reduction Interest
Distribution Amount, and (C) an amount equal to the aggregate unpaid
Class A-5 Component Reduction Interest Shortfalls allocated thereto in
respect of the Class A-5 Component, pro rata;
(xxvi) Twenty-sixth, after the Certificate Balance of the Class A-4-L
Interest has been reduced to zero, to the Class A-5-L Interest, in
reduction of the Certificate Balance thereof, an amount up to the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class A-5-L Interest is reduced to zero;
(xxvii) Twenty-seventh, to the Class A-5-L Interest, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less portions thereof distributed on
such Distribution Date pursuant to all prior clauses, an amount equal
to the aggregate of unreimbursed Realized Losses previously allocated
to such Lower-Tier Regular Interest;
(xxviii) Twenty-eighth, to the Class B-1-L Interest, in respect of
interest, up to an amount equal to interest for the related Interest
Accrual Period at the Class B-1 Pass-Through Rate on the Certificate
Balance of the Class B-1-L Interest;
(xxix) Twenty-ninth, to the Class B-1-L Interest, in respect of interest,
up to an amount equal to the aggregate unpaid Interest Shortfalls in
respect of clause (xxviii) previously allocated thereto in respect of
the Certificate Balance of the Class B-1-L Interest,
(xxx)Thirtieth, after the Certificate Balance of the Class A-5-L Interest
has been reduced to zero, to the Class B-1-L Interest, in reduction of
the Certificate Balance thereof, an amount up to the Principal
Distribution Amount less the portion thereof distributed on such
Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class B-1-L Interest is reduced to zero;
(xxxi) Thirty-first, to the Class B-1-L Interest, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less portions thereof distributed on
such Distribution Date pursuant to all prior clauses, an amount equal
to the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xxxii) Thirty-second, to the Class B-2-L Interest, in respect of interest,
up to an amount equal to interest for the related Interest Accrual
Period at the Class B-2 Pass-Through Rate on the Certificate Balance
of the Class B-2-L Interest;
(xxxiii) Thirty-third, to the Class B-2-L Interest, in respect of interest,
up to an amount equal to the aggregate unpaid Interest Shortfalls in
respect of clause (xxxii) previously allocated thereto in respect of
the Certificate Balance of the Class B-1-L Interest,
(xxxiv) Thirty-fourth, after the Certificate Balance of the Class B-1-L
Interest has been reduced to zero, to the Class B-2-L Interest, in
reduction of the Certificate Balance thereof, an amount up to the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class B-2-L Interest is reduced to zero;
(xxxv) Thirty-fifth, to the Class B-2-L Interest, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less portions thereof distributed on
such Distribution Date pursuant to all prior clauses, an amount equal
to the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xxxvi) Thirty-sixth, to the Class B-3-L Interest, in respect of interest,
up to an amount equal to interest for the related Interest Accrual
Period at the Class B-3 Pass-Through Rate on the Certificate Balance
of the Class B-3-L Interest;
(xxxvii) Thirty-seventh, to the Class B-3-L Interest, in respect of
interest, up to an amount equal to the aggregate unpaid Interest
Shortfalls in respect of clause (xxxvi) previously allocated thereto
in respect of the Certificate Balance of the Class B-3-L Interest,
(xxxviii) Thirty-eighth, after the Certificate Balance of the Class B-2-L
Interest has been reduced to zero, to the Class B-3-L Interest, in
reduction of the Certificate Balance thereof, an amount up to the
Principal Distribution Amount less the portion thereof distributed on
such Distribution Date pursuant to any preceding clause, until the
Certificate Balance of the Class B-3-L Interest is reduced to zero;
(xxxix) Thirty-ninth, to the Class B-3-L Interest, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less portions thereof distributed on
such Distribution Date pursuant to all prior clauses, an amount equal
to the aggregate of such unreimbursed Realized Losses previously
allocated to such Lower-Tier Regular Interest;
(xl) Fortieth, pro rata, to the Class B-4-L and Class B-4H-L Interests, in
respect of interest, up to an amount equal to interest for the related
Interest Accrual Period at the Class B-4 Pass-Through Rate and the
Class B-4H Pass-Through Rate, respectively, on the respective
Certificate Balances of the Class B-4-L and Class B-4H-L Interests;
(xli)Forty-first, pro rata, to the Class B-4-L and Class B-4H-L Interests,
in respect of interest, up to an amount equal to the aggregate unpaid
Interest Shortfalls in respect of clause (xl) previously allocated
thereto in respect of the respective Certificate Balances of the Class
B-4-L and Class B-4H-L Interests;
(xlii) Forty-second, after the Certificate Principal Balance of the Class
B-3-L Interest has been reduced to zero, to the Class B-4-L and Class
B-4H-L Interests, pro rata, in reduction of the respective Certificate
Balances thereof, the Principal Distribution Amount less the portion
thereof distributed on such Distribution Date pursuant to any
preceding clause, until the respective Certificate Balances of the
Class B-4-L and Class B-4H-L Interests are reduced to zero;
(xliii) Forty-third, to the Class B-4-L and Class B-4H-L Interests, pro
rata, for the unreimbursed amounts of Realized Losses, if any, up to
an amount equal to the Principal Distribution Amount less portions
thereof distributed on such Distribution Date pursuant to all prior
clauses, an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to such Lower Tier Regular
Interests; and
(xliv) Forty-fourth, to the Class LR Certificates, but only to the extent
of Available Funds remaining in the Distribution Account.
All references to "pro rata" in each of the preceding clauses in respect of
interest or Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clause. All references to "pro rata" in the
preceding clauses in respect of distribution of principal other than for
unreimbursed Realized Losses shall mean pro rata based upon the respective
Certificate Balances of the Lower-Tier Regular Interests receiving distributions
pursuant to such clause. All references to "pro rata" of the preceding clauses
in respect of unreimbursed Realized Losses shall mean pro rata based on the
amount of unreimbursed Realized Losses in respect of such clauses. All
references to "pro rata" in each of the preceding clauses in respect of Interest
Shortfalls, Component Reduction Interest Distribution Amounts and Component
Reduction Interest Shortfalls shall mean pro rata based on the amount of
Interest Shortfalls, Component Reduction Interest Distribution Amounts and
Component Reduction Interest Shortfalls allocable on the related Distribution
Date.
(b) On each Distribution Date, amounts distributed to the Lower-Tier
Regular Interests pursuant to Section 4.01(a) shall be deposited in the
Upper-Tier Distribution Account.
On each Distribution Date, Holders of each Class of Certificates (other
than the Class LR Certificates) shall receive distributions from amounts on
deposit in the Upper-Tier Distribution Account in respect of interest and
principal in the amounts and in the order of priority set forth below, to the
extent corresponding amounts of interest and principal were distributed pursuant
to Section 4.01(a):
(i) First, pro rata, in respect of interest, to the Class A-1A, Class
A-1B, Class A-1C, Class A-CS1 and Class A-CS2 Certificates, up to an
amount equal to the aggregate Class Interest Distribution Amounts of
such Classes;
(ii) Second, pro rata, to the Class A-1A, Class A-1B, Class A-1C, Class
A-CS1 and Class A-CS2 Certificates, in respect of interest, up to an
amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Classes;
(iii)Third, prior to the Cross-over Date to the Class A-1A Certificates,
in reduction of the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount, until the Certificate Balance
thereof is reduced to zero;
(iv) Fourth, prior to the Cross-over Date, to the Class A-1B Certificates,
in reduction of the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior clauses, until
the Certificate Balance of such Class is reduced to zero;
(v) Fifth, prior to the Cross-over Date, to the Class A-1C Certificates,
in reduction of the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior clauses, until
the Certificate Balance of such Class is reduced to zero;
(vi) Sixth, on and after the Cross-over Date, to the Class A-1A, Class A-1B
and Class A-1C Certificates, pro rata, in reduction of the respective
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount, until the respective Certificate Balances thereof
are reduced to zero;
(vii)Seventh, on and after the Cross-over Date, to the Class A-1A, Class
A-1B, and Class A-1C Certificates, pro rata, from Available Funds, for
the unreimbursed amounts of Realized Losses, if any, up to an amount
equal to the Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior clauses, an
amount equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Classes;
(viii) Eighth, to the Class A-1D Certificates, in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(ix) Ninth, pro rata, in respect of interest (A) to the Class A-1D
Certificates, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class A-CS2 Certificates, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-1D Component and
(C) to the Class A-CS2 Certificates, up to an amount equal to the
aggregate unpaid Reduction Interest Shortfalls previously allocated to
such component;
(x) Tenth, to the Class A-1D Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount
less amounts of Principal Distribution Amount distributed pursuant to
all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xi) Eleventh, to the Class A-1D Certificates, for the unreimbursed amounts
of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, an amount equal to the
aggregate of such unreimbursed Realized Losses previously allocated to
such Class;
(xii)Twelfth, to the Class A-2 Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(xiii) Thirteenth, pro rata, in respect of interest (A) to the Class A-2
Certificates, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class A-CS2 Certificates, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-2 Component and
(C) to the Class A-CS2 Certificates, up to an amount equal to the
aggregate unpaid Reduction Interest Shortfalls previously allocated to
such component;
(xiv)Fourteenth, to the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xv) Fifteenth, to the Class A-2 Certificates, for the unreimbursed amounts
of Realized Losses, if any, up to an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, an amount equal to the
aggregate of such unreimbursed Realized Losses previously allocated to
such Class;
(xvi)Sixteenth, to the Class A-3 Certificates in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(xvii) Seventeenth, pro rata, in respect of interest (A) to the Class A-3
Certificates, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class A-CS2 Certificates, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-3 Component and
(C) to the Class A-CS2 Certificates, up to an amount equal to the
aggregate unpaid Reduction Interest Shortfalls previously allocated to
such component;
(xviii) Eighteenth, to the Class A-3 Certificates in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xix)Nineteenth, to the Class A-3 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xx) Twentieth, to the Class A-4 Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(xxi)Twenty-first, pro rata, in respect of interest (A) to the Class A-4
Certificates, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class A-CS2 Certificates, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-4 Component and
(C) to the Class A-CS2 Certificates, up to an amount equal to the
aggregate unpaid Reduction Interest Shortfalls previously allocated to
such component;
(xxii) Twenty-second, to the Class A-4 Certificates in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxiii) Twenty-third, to the Class A-4 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxiv) Twenty-fourth, to the Class A-5 Certificates in respect of interest,
up to an amount equal to the aggregate Class Interest Distribution
Amount of such Class;
(xxv)Twenty-fifth, pro rata, in respect of interest, (A) to the Class A-5
Certificates, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class A-CS2 Certificates, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-5 Component and
(C) to the Class A-CS2 Certificates, up to an amount equal to the
aggregate unpaid Reduction Interest Shortfalls previously allocated to
such component;
(xvi)Twenty-sixth, to the Class A-5 Certificates in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxvii) Twenty-seventh, to the Class A-5 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxviii) Twenty-eighth, to the Class B-1 Certificates, in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount of such Class;
(xxix) Twenty-ninth, to the Class B-1 Certificates, in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxx)Thirtieth, to the Class B-1 Certificates, in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxi) Thirty-first, to the Class B-1 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxxii) Thirty-second, to the Class B-2 Certificates, in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount of such Class;
(xxxiii) Thirty-third, to the Class B-2 Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxiv) Thirty-fourth, to the Class B-2 Certificates, in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxv) Thirty-fifth, to the Class B-2 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxxvi) Thirty-sixth, to the Class B-3 Certificates, in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount of such Class;
(xxxvii) Thirty-seventh, to the Class B-3 Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxviii) Thirty-eighth, to the Class B-3 Certificates, in reduction of the
Certificate Balance thereof, up to an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxix) Thirty-ninth, to the Class B-3 Certificates, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xl) Fortieth, pro rata, to the Class B-4 and Class B-4H Certificates, up
to an amount equal to the aggregate Class Interest Distribution
Amounts of such Classes;
(xli)Forty-first, pro rata, to the Class B-4 and Class B-4H Certificates,
in respect of interest, up to an amount equal to the aggregate Class
Interest Shortfalls previously allocated to such Classes;
(xlii) Forty-second, pro rata, to the Class B-4 and Class B-4H
Certificates, in reduction of the Certificate Balance thereof, up to
an amount equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to prior clauses,
until the Certificate Balance of each such Class is reduced to zero;
(xliii) Forty-third, pro rata, to the Class B-4 and Class B-4H
Certificates, for the unreimbursed amounts of Realized Losses, if any,
up to an amount equal to the Principal Distribution Amount less
amounts of Principal Distribution Amount distributed pursuant to all
prior clauses, an amount equal to the aggregate of such unreimbursed
Realized Losses previously allocated to each such Class; and
(xliv) Forty-fourth, to the Class R Certificates, but only to the extent of
funds, if any, remaining in the Upper-Tier Distribution Account.
On each Distribution Date, amounts received on a Mortgage Loan that
represent Subordinate Class Advance Recoveries shall be allocated by the Trustee
to the Class of Certificates and the Related Lower-Tier Regular Interest that
advanced the related Subordinate Class Advance Amount in respect of the
distributions to which such Class of Certificates and Related Lower-Tier Regular
Interest were entitled on the Distribution Date on which such distributions were
reduced by such Subordinate Class Advance Amount. Amounts allocated with respect
to interest shall be applied, first, to any related unpaid Interest Shortfalls
or Class Interest Shortfalls. On each Distribution Date, the Paying Agent shall
distribute Subordinate Class Advance Recoveries allocated to the related Class
of Certificates and Related Lower-Tier Regular Interest pursuant to this
paragraph to such Class and Related Lower-Tier Regular Interest.
All references to pro rata in the preceding clauses with respect to
interest and Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realizes Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (i) On each Distribution Date, following the distribution from the
Distribution Account in respect of the Lower-Tier Regular Interests pursuant to
Section 4.01(c)(ii), the Paying Agent shall make distributions of Prepayment
Premiums with respect to any Principal Prepayments received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(c) in the following amounts and order of priority, with
respect to the Certificates of each Class in each case to the extent remaining
amounts of Prepayment Premiums are available therefor:
(I) First, to the Class A-CS1 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate (as defined below) for
the Class A-CS1 Certificates plus the Spread Rate (as defined below)
for the Class A-CS1 Certificates) of the aggregate interest that would
have been paid in respect of the Class A-CS1 Certificates from the
Distribution Date occurring in the following month until the Notional
Balance of the Class A-CS1 Certificates would have been reduced to
zero had the related prepayment not occurred, minus the present value
(discounted at the Discount Rate for the Class A-CS1 Certificates plus
the Spread Rate for the Class A-CS1 Certificates) of the aggregate
interest that will be paid in respect of Class A-CS1 Certificates from
the Distribution Date occurring in the following month until the
Notional Balance of the Class A-CS1 Certificates is reduced to zero
following such prepayment (assuming no further prepayments are made
except that all Mortgage Loans prepay on Anticipated Repayment Dates
where applicable);
(II) Second, to the Class A-CS2 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-CS2
Certificates plus the Spread Rate for the Class A-CS2 Certificates) of
the aggregate interest that would have been paid in respect of the
Class A-CS2 Certificates from the Distribution Date occurring in the
following month until the Notional Balance of the Class A-CS2
Certificates would have been reduced to zero had the related
prepayment not occurred, minus the present value (discounted at the
Discount Rate for the Class A-CS2 Certificates plus the Spread Rate
for the Class A-CS2 Certificates) of the aggregate interest that will
be paid in respect of Class A-CS2 Certificates from the Distribution
Date occurring in the following month until the Notional Balance of
the Class A-CS2 Certificates is reduced to zero following such
prepayment (assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable);
(III)Third, to the Class A-1A Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1A
Certificates plus the Spread Rate for the Class A-1A Certificates) of
the aggregate principal and interest that would have been paid in
respect of the Class A-1A Certificates from the Distribution Date
occurring in the following month until the Certificate Balance of the
Class A-1A Certificates would have been reduced to zero had the
related prepayment not occurred, minus the sum of (B) the amount of
such prepayment distributed in respect of the Class A-1A Certificates
and (C) the present value (discounted at the Discount Rate for the
Class A-1A Certificates plus the Spread Rate for the Class A-1A
Certificates) of the aggregate principal and interest that will be
paid in respect of the Class A-1A Certificates from the Distribution
Date occurring in the following month until the Certificate Balance of
the Class A-1A Certificates is reduced to zero following such
prepayment (assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable);
(IV) Fourth, to the Class A-1B Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1B
Certificates plus the Spread Rate for the Class A-1B Certificates) of
the aggregate principal and interest that would have been paid in
respect of the Class A-1B Certificates from the Distribution Date
occurring in the following month until the Certificate Balance of the
Class A-1B Certificates would have been reduced to zero had the
related prepayment not occurred, minus the sum of (B) the amount of
such prepayment distributed in respect of the Class A-1B Certificates
and (C) the present value (discounted at the Discount Rate for the
Class A-1B Certificates plus the Spread Rate for the Class A-1B
Certificates) of the aggregate principal and interest that will be
paid in respect of the Class A-1B Certificates from the Distribution
Date occurring in the following month until the Certificate Balance of
the Class A-1B Certificates is reduced to zero following such
prepayment (assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable); and
(V) Fifth, to the Class A-1C Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1C
Certificates plus the Spread Rate for the Class A-1C Certificates) of
the aggregate principal and interest that would have been paid in
respect of the Class A-1C Certificates from the Distribution Date
occurring in the following month until the Certificate Balance of the
Class A-1C Certificates would have been reduced to zero had the
related prepayment not occurred, minus the sum of (B) the amount of
such prepayment distributed in respect of the Class A-1C Certificates
and (C) the present value (discounted at the Discount Rate for the
Class A-1C Certificates plus the Spread Rate for the Class A-1C
Certificates) of the aggregate principal and interest that will be
paid in respect of the Class A-1C Certificates from the Distribution
Date occurring in the following month until the Certificate Balance of
the Class A-1C Certificates is reduced to zero following such
prepayment (assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable).
In all clauses above, Prepayment Premiums will only be distributed on a
Distribution Date (i) if the respective Certificate Balance or Notional Balance
of the related Class or Classes is greater than zero on the last business day of
the Interest Accrual Period preceding such Distribution Date and (ii) if the
amount computed pursuant to the related clause above is greater than zero. Any
Prepayment Premiums remaining following the distributions described in the
preceding clauses (I) through (V) shall be distributed to holders of the Class
B-4H Certificates regardless of whether the Certificate Balance thereof has been
reduced to zero.
Notwithstanding the foregoing, Prepayment Premiums shall be distributed on any
Distribution Date only to the extent they are received in respect of the
Mortgage Loans in the related Collection Period.
(ii) On each Distribution Date, prior to the distributions to the
Certificates from the Upper-Tier Distribution Account pursuant to Section
4.01(c)(i), the Class A-1A-L Interest shall receive distributions in respect of
Prepayment Premiums distributable to the Class A-1A and Class A-CS1
Certificates, the Class A-1B-L Interest shall receive distributions in respect
of Prepayment Premiums distributable to the Class A-1B Certificates, the Class
A-1C-L Interest shall receive distributions in respect of Prepayment Premiums
distributable to the Class A-1C Certificates, the Class A-2-L Interest, shall
receive distributions in respect of Prepayment Premiums distributable to the
Class A-CS2 Certificates pro rata based on the amounts of interest distributable
to each such Class on such Distribution Date and the Class B-4H-L Interest shall
receive distributions in respect of Prepayment Premiums distributable to the
Class B-4H Certificates, in each case from amounts on deposit in the
Distribution Account. The Class A-1A-L, Class A-1B-L, Class A-1C-L, Class A-2-L
and Class B-4H-L Interests shall be entitled to receive distributions of such
Prepayment Premiums regardless of whether the respective Certificate Balances
have been reduced to zero.
(d) (i) On each Distribution Date, Net Default Interest for such
Distribution Date shall be distributed to the Class V-1 Certificates.
(ii) On any applicable Distribution Date, Excess Interest for such
Distribution Date shall be distributed to the Class V-2 Certificates.
(e) The Certificate Balances of the Lower-Tier Regular Interests will be
reduced without distribution on any Distribution Date as a write-off to the
extent of any Realized Losses with respect to such date. Any such write-offs
will be applied to the Lower-Tier Regular Interests: first, to the Class B-4-L
and Class B-4H-L Interests, pro rata, based on their respective Certificate
Balances; second to the Class B-3-L Interest; third, to the Class B-2-L
Interest; fourth, to the Class B-1-L Interest, fifth, to the Class A-5-L
Interest; sixth, to the Class A-4-L Interest; seventh, to the Class A-3-L
Interest; eighth, to the Class A-2-L Interest; ninth, to the Class A-1D-L
Interest; and tenth, to the Class A-1A-L, Class A-1B-L and Class A-1C-L
Interests, pro rata, based on their respective Balances.
Realized Losses applied to each Class of Lower-Tier Regular Interests will
be allocated to reduce the Certificate Balance of the Related Certificates (and
correspondingly, to reduce the Component Balances of the related components).
(f) All amounts distributable to a Class of Certificates pursuant to this
Section 4.01 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first Class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
(g) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information previously
provided to it that the final distribution with respect to such Class
of Certificates will be made on such Distribution Date, but only upon
presentation and surrender of such Certificates at the office of the
Trustee therein specified, and
(B) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificates from and after such
Distribution Date;
provided, however, that the Class V-1, Class V-2, Class R and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates or Lower-Tier Regular Interests outstanding.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and held in trust
for the benefit of the appropriate non-tendering Holder or Holders. If any
Certificates as to which notice has been given pursuant to this Section 4.01(g)
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation to receive the final distribution with respect thereto. If within
one year after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. If within two years after the second notice any such Certificates
shall not have been surrendered for cancellation, the Paying Agent shall pay to
the Trustee all amounts distributable to the Holders thereof, and the Trustee
shall thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee hereunder and the transfer of such
amounts to a successor Trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Class R Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
hereunder or by the Trustee as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 4.01(g). Any such amounts transferred to the Trustee may be invested in
Permitted Investments and all income and gain realized from investment of such
funds shall be for the benefit of the Trustee.
(h) Notwithstanding any provision in this Agreement to the contrary, the
aggregate amount distributable to each Class pursuant to this Section 4.01 shall
be reduced by the aggregate amount paid to any Person pursuant to Section 6.03
or Section 8.05(b) and (d), such reduction to be allocated among such Classes
pro rata, based upon the respective amounts so distributable without taking into
account the provision of this Section 4.01(h). Such reduction of amounts
otherwise distributable to a Class shall be allocated first in respect of
interest and second in respect of principal. For purposes of determining
Interest Shortfalls and Certificate Balances, the amount of any such reduction
so allocated to a Class shall be deemed to have been distributed to such Class.
(i) The Component Balance of the Strip Components (other than the Class
A-1A Strip Component, the Class A-1B Strip Component and the Class A-1C Strip
Component) shall be reduced on any Distribution Date after the Certificate
Balances of the Class B-1, Class B-2, Class B-3, Class B-4 and Class B-4H
Certificates have been reduced to zero to the extent of any Delinquency
Reduction Amounts or Appraisal Reduction Amounts with respect to such
Distribution Date; provided that (i) if a Delinquency and an Appraisal Reduction
Event occur on the same Distribution Date with respect to the same Mortgage
Loan, the reduction will equal the greater of the related Delinquency Reduction
Amount and the Appraisal Reduction Amount, (ii) for any Distribution Date, the
aggregate of the Delinquency Reduction Amounts may not exceed the Component
Balance of the most junior Strip Component then outstanding and (iii) except as
described in clause (i), on any Distribution Date, Appraisal Reduction Amounts
will be allocated to the applicable Component Balances prior to Delinquency
Reduction Amounts. On any Distribution Date after the respective Certificate
Balances of the Class B-1, Class B-2, Class B-3, Class B-4 and Class B-4H
Certificates have been reduced to zero, any such reductions shall be applied to
the Strip Components in the following order, until each is reduced to zero:
first, to the Class A-5 Strip Component, second, to the Class A-4 Strip
Component, third, to the Class A-3 Strip Component, fourth, to the Class A-2
Strip Component, and fifth, to the Class A-1D Strip Component. The Notional
Balance of the Class A-CS2 Certificates shall be reduced to reflect reductions
in the Component Balances of the Class A-1D Strip Component, Class A-2 Strip
Component, Class A-3 Strip Component, Class A-4 Strip Component and Class A-5
Strip Component resulting from Delinquency Reduction Amounts and Appraisal
Reduction Amounts. Any reduction of the Component Balance of a Strip Component
as a result of any Delinquency or Appraisal Reduction Event shall be reversed to
the extent there is a recovery of any or all of the Delinquency Amounts or a
Realized Loss (which results in the reduction of the Certificate Balance of the
related Class and therefore the reduction of the Component Balance of such Strip
Component). Additionally, a reversal or additional reduction shall occur to the
extent that the Servicer's Appraisal Estimate is less than or greater than the
Appraisal Reduction as adjusted to take into account a subsequent independent
MAI Appraisal. For purposes of calculating Interest Accrual Amounts, any such
reversal or additional reductions made on the Distribution Date occurring in an
Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period.
SECTION 4.02. Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher.
(a) On each Distribution Date, the Trustee shall, based on information
provided by the Servicer or provided by the Special Servicer to the Servicer
(with respect to a Specially Serviced Mortgage Loan or the servicing
responsibilities of the Special Servicer set forth herein) and subject to
receipt thereof, prepare and forward by mail to each Holder of a Certificate,
with copies to the Depositor, the Paying Agent, the Special Servicer, the
Servicer, the Rating Agencies and up to three market reporting services
designated by the Depositor, a statement as to such distribution setting forth
for each Class, as applicable:
(i) The Principal Distribution Amount and the amount of Available Funds
allocable to principal included therein;
(ii) The Class Interest Distribution Amount distributable on such Class and
any related Strip Component and the amount of Available Funds
allocable thereto, together with any Class Interest Shortfall
allocable to such Class and any related Strip Component;
(iii)The amount of any P&I Advances by the Servicer, the Trustee or the
Fiscal Agent included in the amounts distributed to Certificateholders
not reimbursed since the last Distribution Date;
(iv) The Certificate Balance or Notional Balance, as applicable, of each
Class or Strip Component after giving effect to the distribution of
amounts in respect of the Principal Distribution Amount on such
Distribution Date;
(v) Realized Losses (for such month and on a cumulative basis) and their
allocation to the Certificate Balance of any Class of Certificates;
(vi) The Stated Principal Balance of the Mortgage Loans as of the Due Date
preceding such Distribution Date;
(vii)The number and aggregate principal balance of Mortgage Loans (and the
identity of each related Borrower) (A) delinquent one month, (B)
delinquent two months, (C) delinquent three or more months, (D) as to
which foreclosure proceedings have been commenced and (E) that
otherwise constitute Specially Serviced Mortgage Loans, and, with
respect to each Specially Serviced Mortgage Loan, the amount of
Property Advances made during the related Collection Period, the
amount of the P&I Advance made on such Distribution Date, the
aggregate amount of Property Advances theretofore made that remain
unreimbursed and the aggregate amount of P&I Advances theretofore made
that remain unreimbursed;
(viii) With respect to any Mortgage Loan that became an REO Property during
the preceding calendar month, the principal balance and appraised
value (based on the most recent Updated Appraisal) of such Mortgage
Loan as of the date it became an REO Mortgage Loan;
(ix) As of the Due Date preceding such Distribution Date (A) for any REO
Property sold during the related Collection Period, the date on which
the Special Servicer determined that a Final Recovery Determination
was made and the amount of the proceeds of such sale deposited into
the Collection Account and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property
during the related Collection Period and credited to the Collection
Account, in each case identifying such REO Property by name;
(x) The appraised value as determined by the most recent Updated Appraisal
(or annual letter update thereof) of any REO Property;
(xi) The amount of the Servicing Fee, Trustee Fee and Special Servicing
Compensation paid with respect to such Distribution Date, and the
amount of the additional servicing compensation described in Section
3.12(a) that was received during the related Collection Period;
(xii)(A) The amount of Prepayment Premiums, if any, received during the
related Collection Period, (B) the amount of Default Interest received
during the related Collection Period and the Net Default Interest for
such Distribution Date and (C) the amount of Excess Interest, if any,
received during the related Collection Period;
(xiii) The outstanding principal balance and repurchase price of any
Mortgage Loan purchased or repurchased pursuant to Sections 2.03(d),
2.03(e), 3.18 or 9.01(c);
(xiv)The amount of Prepayment Interest Shortfalls with respect to such
Distribution Date; and
(xv) The account balance contained in the Reserve Accounts as of the
related Due Date relating to the preceding Distribution Date for each
Mortgage Loan.
In the case of information furnished pursuant to subclauses (i), (ii),
(iii), (iv), (v) and (xiii) above, the amounts shall be expressed as a dollar
amount in the aggregate for all Certificates of each applicable Class and for
each Class of Certificates with a denomination of $1,000 initial Certificate
Balance.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Certificate (except for a Class R or Class LR Certificate) a
statement containing the information set forth in subclauses (i) and (ii) above,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates on such Distribution Date. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Class R or Class LR Certificate a statement containing the
information provided pursuant to the previous paragraph aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that it provided substantially comparable information
pursuant to any requirements of the Code as from time to time in force.
(b) On or within two Business Days following each Distribution Date, the
Trustee shall prepare and furnish to the Financial Market Publisher and the
Underwriter, using the format and media mutually agreed upon by the Trustee, the
Financial Market Publisher and the Underwriter, the following information
regarding each Mortgage Loan and any other information reasonably requested by
the Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02(a) and 4.02(b) to the extent it
receives the necessary underlying information from the Servicer or the Special
Servicer and shall not be liable for any failure to deliver any thereof on the
prescribed due dates, to the extent caused by failure to receive timely such
underlying information. Nothing herein shall obligate the Trustee, the Servicer
or the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is non-U.S.
Person that has furnished or caused to be furnished (i) an effective Form W-8 or
Form W-9 or an acceptable substitute form or a successor form and who is not a
"10-percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to the Trust Fund or the Depositor, or (ii) an effective Form 4224 or an
acceptable substitute form or a successor form. In the event the Paying Agent or
its agent withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code; (iv) if
the filing or distribution of any documents of an administrative nature not
addressed in clauses (i) through (iii) of this Section 4.05(a) is then required
by the REMIC Provisions in order to maintain the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC or is otherwise required by the Code,
prepare, sign and file or distribute, or cause to be prepared and signed and
filed or distributed, such documents with or to such Persons when and as
required by the REMIC Provisions or the Code or comparable provisions of state
and local law; (v) within thirty days of the Closing Date, furnish or cause to
be furnished to the Internal Revenue Service, on Form 8811 or as otherwise may
be required by the Code, the name, title and address of the Person that the
holders of the Certificates may contact for tax information relating thereto
(and the Trustee shall act as the representative of each of the Upper-Tier REMIC
and the Lower-Tier REMIC for this purpose), together with such additional
information as may be required by such Form, and shall update such information
at the time or times and in the manner required by the Code (and the Depositor
agrees within 10 Business Days of the Closing Date to provide any information
reasonably requested by the Servicer, the Special Servicer or the Trustee and
necessary to make such filing); and (vi) maintain such records relating to each
of the Upper-Tier REMIC and the Lower-Tier REMIC as may be necessary to prepare
the foregoing returns, schedules, statements or information, such records, for
federal income tax purposes, to be maintained on a calendar year and on an
accrual basis. The Holder of the largest Percentage Interest in the Class R or
Class LR Certificates shall be the tax matters person of the Upper-Tier REMIC or
the Lower-Tier REMIC, respectively, pursuant to Treasury Regulations Section
1.860F-4(d). If more than one Holder should hold an equal Percentage Interest in
the Class R or Class LR Certificates larger than that held by any other Holder,
the first such Holder to have acquired such Class R or Class LR Certificates
shall be such tax matters person. The Trustee shall act as attorney-in-fact and
agent for the tax matters person of each of the Upper-Tier REMIC and Lower-Tier
REMIC, and each Holder of a Percentage Interest in the Class R or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund. The Trustee shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Trustee knows that such action or omission (as the case may be)
would cause the termination of the REMIC status of the Upper-Tier REMIC or the
Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC or the
Lower-Tier REMIC (other than a tax on income expressly permitted or contemplated
to be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Depositor, the Servicer
or the Special Servicer which does not enable the Trustee to comply with any of
clauses (i) through (vi) of the fifth preceding sentence or which results in any
action contemplated by clauses (i) or (ii) of the next succeeding sentence. In
this regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Upper-Tier
REMIC or Lower-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (C) cause either
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow the Trust Fund to receive income from the
performance of services or from assets not permitted under the REMIC Provisions
to be held by a REMIC (provided, however, that the receipt of any income
expressly permitted or contemplated by the terms of this Agreement shall not be
deemed to violate this clause). None of the Servicer, the Special Servicer and
the Depositor shall be responsible or liable (except in connection with any act
or omission referred to in the two preceding sentences) for any failure by the
Trustee to comply with the provisions of this Section 4.04. The Depositor, the
Servicer and the Special Servicer shall cooperate in a timely manner with the
Trustee in supplying any information within the Depositor's, the Servicer's or
the Special Servicer's control (other than any confidential information) that is
reasonably necessary to enable the Trustee to perform its duties under this
Section 4.04.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans in the aggregate will prepay
in accordance with the Prepayment Assumption; (ii) none of the Servicer, the
Depositor and the Class LR Certificateholders will exercise the right described
in Section 9.01 of this Agreement to cause early termination of the Trust Fund;
and (iii) no Mortgage Loan is repurchased by the Mortgage Loan Seller, the
Depositor or an Mortgage Loan Seller pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from Available Funds sufficient funds to
pay or provide for the payment of, and to actually pay, such tax as is legally
owed by the Upper-Tier REMIC or Lower-Tier REMIC (but such authorization shall
not prevent the Trustee from contesting, at the expense of the Trust Fund, any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate or cause to be segregated, into a
separate non-interest bearing account, (i) the net income from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to the Upper-Tier REMIC or Lower-Tier REMIC after the Startup Day that is
subject to tax under Code Section 860G(d) and use such income or amount, to the
extent necessary, to pay such tax (and return the balance thereof, if any, to
the Collection Account or the Upper-Tier Distribution Account, as the case may
be). To the extent that any such tax is paid to the Internal Revenue Service,
the Trustee shall retain an equal amount from future amounts otherwise
distributable to the Holders of the Class R or the Class LR Certificates as the
case may be, and shall distribute such retained amounts to the Holders of
Regular Certificates or Lower-Tier Regular Interests, as applicable, until they
are fully reimbursed and then to the Holders of the Class R Certificates or the
Class LR Certificates, as applicable. Neither the Servicer, the Special Servicer
nor the Trustee shall be responsible for any taxes imposed on the Upper-Tier
REMIC or Lower-Tier REMIC except to the extent such tax is attributable to a
breach of a representation or warranty of the Servicer, the Special Servicer or
the Trustee or an act or omission of the Servicer, the Special Servicer or the
Trustee in contravention of this Agreement in both cases, provided, further,
that such breach, act or omission could result in liability under Section 6.03,
in the case of the Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer or the Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (A) if such Mortgage Loan is delinquent as to its Balloon
Payment (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the related Assumed Scheduled Payment, (B)
if such Mortgage Loan has been extended in accordance with the terms and
conditions otherwise set forth in this Agreement, the Minimum Defaulted Monthly
Payment and (C) if such Mortgage Loan is not described by the preceding two
sentences (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the Monthly Payment (after giving effect
to any modification other than as described in (A) or (B) above); provided,
however, that for purposes of calculating the amount of any P&I Advance required
to be made by the Servicer, the Trustee or the Fiscal Agent, notwithstanding the
amount of such Applicable Monthly Payment, interest shall be calculated at the
Mortgage Pass-Through Rate. The Applicable Monthly Payment shall be reduced, for
purposes of P&I Advances, by any modifications pursuant to Section 3.30 or
otherwise and by any reductions by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each Distribution
Date, the Servicer shall:
(i) remit to the Trustee for deposit in the Distribution Account an amount
equal to the Prepayment Premiums received by the Servicer or Special
Servicer in the Collection Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in the Distribution Account an amount
equal to the aggregate of the Available Funds (other than P&I
Advances) and Subordinate Class Advance Recoveries for such
Distribution Date;
(iii)make a P&I Advance, by deposit into the Distribution Account, in an
amount equal to the sum of the Applicable Monthly Payments for each
Mortgage Loan to the extent such amounts were not received on such
Mortgage Loan as of the close of business on the day preceding the
Servicer Remittance Date (and therefore are not included in the
remittance described in the preceding clause (ii)).
(c) Notwithstanding the provisions of Section 4.06(b)(iii), the Servicer
may reduce the aggregate amount of P&I Advances to be deposited by the Servicer
on the related Servicer Remittance Date by the amount the Servicer is not
required to advance pursuant to clauses (d) and (e) below. The Trustee shall
provide to the Servicer written statements prior to the Servicer Remittance Date
listing (i) the aggregate Reduction Interest Distribution Amounts and Reduction
Interest Shortfalls for such Distribution Date and (ii) distribution due to the
Holders of the most subordinate Class of Certificates and the Related Lower-Tier
and Regular Interests.
(d) On any Servicer Remittance Date on which the Servicer is required to
make a P&I Advance, the Servicer shall, immediately subsequent to the making of
the P&I Advance on such Servicer Remittance Date, reimburse itself (without
interest) for the P&I Advance from and up to amounts distributable to the most
subordinate Class and the Related Lower-Tier Regular Interests on the related
Distribution Date (such amount of reimbursement, the "Subordinate Class Advance
Amount"). If for any Distribution Date, the most subordinate Class of
Certificates is the Class A-5 Certificates or any more senior Class of
Certificates, the Servicer shall reduce the amount of any P&I Advance by the
amount of any Appraisal Reduction Amounts or Reduction Interest Distribution
Amounts before reimbursing itself from Subordinate Class Advance Amounts. No
interest shall accrue on, or be payable with respect to, any outstanding
Subordinate Class Advance Amount. For the purposes of determining amounts to
which the most subordinate Class and the Related Lower-Tier Regular Interests
are entitled as reimbursements from Subordinate Class Advance Recoveries with
respect to a Mortgage Loan, each Subordinate Class Advance Amount with respect
to a Distribution Date shall be related to each Mortgage Loan for which a
Delinquency has occurred on the prior Due Date pro rata based on the amount of
the related Monthly Payment that was delinquent. The Servicer shall keep a
record of the Subordinate Class Advance Amount outstanding for each Mortgage
Loan and to which Class any recoveries with respect thereto should be paid. If
for any Mortgage Loan there are outstanding Subordinate Class Advance Amounts
and P&I Advances, such P&I Advances shall be paid from recoveries from such
Mortgage Loan prior to the payment of such Subordinate Class Advance Amounts.
(e) The Servicer shall not be required or permitted to make an advance for
Excess Interest or Default Interest or in respect of Reduction Interest
Distribution Amounts and Reduction Interest Shortfalls. The amount required to
be advanced by the Servicer in respect of Applicable Monthly Payments on
Mortgage Loans that have been subject to an Appraisal Reduction Event will equal
the product of (i) the amount required to be advanced by the Servicer without
giving effect to such Appraisal Reduction Amounts and (ii) a fraction, the
numerator of which is the Stated Principal Balance of the Mortgage Loan less any
Appraisal Reduction Amounts thereof and the denominator of which is the Stated
Principal Balance.
(f) Any amount advanced by the Servicer pursuant to Section 4.06(b)(iii)
shall constitute a P&I Advance for all purposes of this Agreement and the
Servicer shall be entitled to reimbursement thereof to the full extent as
otherwise set forth in this Agreement.
(g) If as of 11:00 a.m., New York City time, on any Distribution Date the
Servicer shall not have made the P&I Advance required to have been made on the
related Servicer Remittance Date pursuant to Section 4.06(b)(iii), the Trustee
shall immediately notify the Fiscal Agent by telephone promptly confirmed in
writing, and the Trustee shall no later than 12:00 noon, New York City time, on
such Business Day deposit into the Distribution Account in immediately available
funds an amount equal to the P&I Advances otherwise required to have been made
by the Servicer. If the Trustee fails to make any P&I Advance required to be
made under this Section 4.06, the Fiscal Agent shall make such P&I Advance not
later than 2:00 p.m., New York City time, on such Business Day and, thereby, the
Trustee shall not be in default under this Agreement.
(h) None of the Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a P&I Advance as to any Monthly Payment or Assumed Scheduled
Payment or Minimum Defaulted Monthly Payment on any date on which a P&I Advance
is otherwise required to be made by this Section 4.06 if the Servicer, the
Trustee or Fiscal Agent, as applicable, determines that such advance will be a
Nonrecoverable Advance. The Servicer shall be required to provide notice to the
Trustee and the Fiscal Agent on or prior to the Servicer Remittance Date of any
such non-recoverability determination made on or prior to such date. The Trustee
and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Servicer that a P&I Advance, if made, would be a
Nonrecoverable Advance (and with respect to a P&I Advance, the Trustee or the
Fiscal Agent, as applicable, shall rely on the Servicer's determination that the
Advance would be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as
applicable, determines that it does not have sufficient time to make such
determination); provided, however, that if the Servicer has failed to make a P&I
Advance for reasons other than a determination by the Servicer that such Advance
would be a Nonrecoverable Advance, the Trustee or Fiscal Agent, as applicable,
shall make such advance within the time periods required by Section 4.06(g)
unless the Trustee or the Fiscal Agent, in good faith, makes a determination
prior to the times specified in Section 4.06(g) that such advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not an Advance previously made is, or a proposed Advance, if made, would be,
a Nonrecoverable Advance shall be subject to the standards applicable to the
Servicer hereunder.
(i) The Servicer, the Trustee or the Fiscal Agent, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent permitted
pursuant to Section 3.06(ii) of this Agreement together with any related Advance
Interest Amount in respect of such P&I Advances to the extent permitted pursuant
to Section 3.06(iii) and the Servicer and Special Servicer hereby covenant and
agree to promptly seek and effect the reimbursement of such Advances from the
related Borrowers to the extent permitted by applicable law and the related
Mortgage Loan.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of (i)
the Default Interest and the Default Interest Distribution Account and (ii) the
Excess Interest and the Excess Interest Distribution Account shall constitute,
and that the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Class V-1 and Class V-2 Certificateholders and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, income with respect to their applicable share
of Default Interest and the amount of any interest on unreimbursed Advances
payable to the Servicer, the Trustee and the Fiscal Agent, as applicable,
therefrom pursuant to Section 3.06(iii) in the case of the Class V-1
Certificates, and Excess Interest in the case of the Class V-2 Certificates, at
the time or times and in the manner required by the Code.
SECTION 4.08. Special Distribution Date.
(a) Upon a prepayment with respect to the Malibu Canyon Loan on any day
other than a Due Date and after the expiration of the related Lock-out Period,
the Servicer shall remit on the Business Day preceding the related Special
Distribution Date, the amount of the related Malibu Principal, and interest
thereon at the Net Mortgage Pass-Through Rate, to the Trustee for deposit in the
Lower-Tier Distribution Account. The Trustee shall deposit such amount in the
Lower-Tier Distribution Account and apply such amount on the related Special
Distribution Date as set forth in clause (b) below.
(b) On any Special Distribution Date, the Paying Agent shall distribute the
Malibu Principal and the interest accrued thereon from the first day of the
related Interest Accrual Period to the date on which such Malibu Principal was
received, to the extent such amounts are on deposit in the Lower-Tier
Distribution Account, to the respective Classes of Certificates, Strip
Components and Related Lower-Tier Regular Interest, in each case up to an amount
equal to the related Interest Accrual Amount and related Certificate Balance or
Component Balance of such Certificates, Strip Components and Related Lower-Tier
Regular Interests, in the manner set forth in Section 4.01, in the same manner
as if such amount constituted "Available Funds" and such Special Distribution
Date were the Distribution Date. Interest on the Malibu Canyon Loan deposited in
the Lower-Tier Distribution Account and not distributed on the related Special
Distribution Date shall be held in the Lower-Tier Distribution Account for
distribution on the following Distribution Date as part of Available Funds for
such Distribution Date. Interest accruing on Malibu Principal and payable to any
Class of Certificates, Strip Components or Related Lower-Tier Regular Interests
for which funds are insufficient on a Special Distribution Date shall be
allocated thereto as an unpaid Interest Shortfall.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates consist of the Class A-1A Certificates, the Class A-1B
Certificates, the Class A-1C Certificates, the Class A-CS1 Certificates, the
Class A-CS2 Certificates, the Class A-1D Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-5 Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the
Class B-3 Certificates, the Class B-4 Certificates, the Class B-4H Certificates,
the Class V-1 Certificates, the Class V-2 Certificates, the Class R Certificates
and the Class LR Certificates.
The Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-CS2, Class
A-1D, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class LR
Certificates will be substantially in the forms annexed hereto as Exhibits A-1
through A-19, as set forth in the Table of Exhibits hereto. The Certificates of
each Class will be issuable in registered form only, in minimum denominations of
authorized Certificate Balance or Notional Balance, as applicable, as described
in the succeeding table, and multiples of $1 in excess thereof (or such lesser
amount if the Certificate or Notional Balance, as applicable, is not a multiple
of $1). With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (A) set forth on
the face thereof or (B) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the amount set forth on the books and records of the related
Participant or Indirect Participant, as applicable, (ii) expressed in terms of
Initial Certificate Balance or Notional Balance, as applicable, and (iii) be in
an authorized denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
A-1A $ 100,000.00 $ 64,985,025.00
A-1B $ 100,000.00 $ 154,000,000.00
A-1C $ 100,000.00 $ 321,000,000.00
A-CS1(1) $ 100,000.00 $ 64,985,025.00
A-CS2(2) $ 100,000.00 $ 623,691,525.00
A-1D $ 100,000.00 $ 19,564,674.00
A-2 $ 100,000.00 $ 39,129,349.00
A-3 $ 100,000.00 $ 35,216,414.00
A-4 $ 100,000.00 $ 39,129,349.00
A-5 $ 100,000.00 $ 15,651,739.00
B-1 $ 100,000.00 $ 43,042,284.00
B-2 $ 100,000.00 $ 27,390,544.00
B-3 $ 100,000.00 $ 7,825,869.00
B-4 $ 100,000.00 $ 15,650,746.00
B-4H $ 1,000.00 $ 1,000.80
With respect to each of the Class A-CS2 Certificates, on the Closing Date,
the Trustee and the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall deliver (i) one or more Rule 144A global
certificates (the "Rule 144A Global Certificates") in definitive, fully
registered form without interest coupons, substantially in the forms of Exhibits
A-5/A hereto and (ii) one or more Regulation S global certificates (the
"Regulation S Global Certificates") in definitive, fully registered form without
interest coupons, substantially in the form of Exhibit A-5/B hereto. The Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates shall each be issued as one
or more Individual Certificates, substantially in the form of Exhibits A-11,
A-12, A-13 and A-14 hereto. Such Certificates shall not be issuable as Global
Certificates unless the Depositor determines that issuance in such form is
feasible under Applicable Procedures (after consideration of the date of the
Distribution Date and the requirements of the Depository) and the Paying Agent
concurs in such determination.
Each Certificate will share ratably in all rights of the related Class. The
Class B-4H Certificates shall be issuable in a single, registered definitive
physical certificate evidencing its aggregate initial Certificate Balance. The
Class V-1, Class V-2, Class R and LR Certificates will each be issuable in one
or more registered, definitive physical certificates in minimum denominations of
5% Percentage Interests and integral multiples of a 1% Percentage Interest in
excess thereof and together aggregating the entire 100% Percentage Interest in
each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the same
benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the Trust
Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Certificateholders (even if
such Certificateholders hold their Certificates through the Depository) the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Public Global Certificates shall not be
entitled to physical certificates for the Public Global Certificates as to which
they are the Beneficial Owners. Requests and directions from, and votes of, the
Depository as Holder of the Global Certificates shall not be deemed inconsistent
if they are made with respect to different Beneficial Owners. Subject to the
restrictions on transfer set forth in this Section 5.02 and Applicable
Procedures, the holder of a beneficial interest in a Private Global Certificate
may request that the Depositor, or an agent thereof, cause the Depository (or
any Agent Member) to notify the Certificate Registrar and the Certificate
Custodian in writing of a request for transfer or exchange of such beneficial
interest for an Individual Certificate or Certificates. Upon receipt of such a
request and payment by the related Beneficial Owner of any attendant expenses,
the Depositor shall cause the issuance and delivery of such Individual
Certificates. The Certificate Registrar may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Depositor and the Certificate Registrar, no
Global Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(c) Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
(d) The Global Certificates (i) shall be delivered by the Certificate
Registrar to the Depository or, pursuant to the Depository's instructions on
behalf of the Depository to, and deposited with, the Certificate Custodian, and
in either case shall be registered in the name of Cede & Co. and (ii) shall bear
a legend substantially to the following effect:
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Certificate Registrar for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein."
The Global Certificates may be deposited with such other Depository as the
Certificate Registrar may from time to time designate, and shall bear such
legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Trustee is unable to locate a qualified
successor, (ii) the Depositor or the Trustee, at its sole option, elects to
terminate the book-entry system through the Depository with respect to all or
any portion of any Class of Certificates or (iii) after the occurrence of an
Event of Default, Beneficial Owners owning not less than a majority in
Certificate Balance or Notional Balance, as applicable, of the Global
Certificate for any Class then outstanding advise the Depository through
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Beneficial Owner
or Owners of such Global Certificate, the Trustee shall notify the affected
Beneficial Owner or Owners through the Depository of the occurrence of such
event and the availability of Individual Certificates to such Beneficial Owners
requesting them. Upon surrender to the Trustee of Global Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Individual Certificates.
Neither the Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer,
the Special Servicer nor the Depositor shall be liable for any actions taken by
the Depository or its nominee, including, without limitation, any delay in
delivery of such instructions. Upon the issuance of Individual Certificates, the
Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer or Special Servicer has
instituted or has been directed to institute any judicial proceeding in a court
to enforce the rights of the Certificateholders under the Certificates, and the
Trustee, the Servicer or the Special Servicer has been advised by counsel that
in connection with such proceeding it is necessary or appropriate for the
Trustee, the Servicer or the Special Servicer to obtain possession of the
Certificates, the Trustee, the Servicer or the Special Servicer may in its sole
discretion determine that the Certificates represented by the Global
Certificates shall no longer be represented by such Global Certificates. In such
event, the Trustee or the Authenticating Agent will execute and authenticate and
the Certificate Registrar will deliver, in exchange for such Global
Certificates, Individual Certificates (and if the Trustee or the Certificate
Custodian has in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R or
Class LR Certificate, upon request of such a Holder, information substantially
equivalent in scope to the information currently filed by the Servicer with the
Commission pursuant to the Exchange Act, plus such additional information
required to be provided for securities qualifying for resales under Rule 144A
under the Act, all of which information referred to in this paragraph shall be
provided on a timely basis to the Trustee by the Servicer.
For so long as the Class B-1, Class B-2, Class B-4, Class B-4H, Class V-1,
Class V-2, Class R or Class LR Certificates remain outstanding, neither the
Depositor nor the Trustee nor the Certificate Registrar shall take any action
which would cause the Trust Fund to fail to be subject to Section 15(d) of the
Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar form, and
each Certificate shall, upon original issue, be executed and authenticated by
the Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-16 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register; provided, however, in no event shall the Certificate
Registrar be required to maintain in the Certificate Register the names of the
individual participants holding beneficial interests in the Trust Fund through
the Depository. The Person in whose name any Certificate is so registered shall
be deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Depositor, Certificate Registrar, the Servicer, Special
Servicer, the Trustee, the Fiscal Agent any Paying Agent and any agent of any of
them shall not be affected by any notice or knowledge to the contrary. An
Individual Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at the Corporate Trust Office
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney), subject to the requirements of Sections 5.02(c), (d), (e),
(f), (g) and (h). Upon request of the Trustee, the Certificate Registrar shall
provide the Trustee with the names, addresses and Percentage Interests of the
Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Individual Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled and
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.02(d), (e), (f), (g) and
(h) and the rules of the Depository; the exchange, transfer and registration of
transfer of Individual Certificates or beneficial interests in the Private
Global Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates. With respect
to the transfer and registration of transfer of an Individual Certificate
representing an interest in the Class B-1, Class B-2, Class B-3, Class B-4,
Class B-4H, Class V-1, Class V-2, Class R or Class LR Certificates to a
transferee that takes delivery in the form of an Individual Certificate:
(A) The Certificate Registrar shall register the transfer of an
Individual Certificate if the requested transfer is being made by a
transferee who has provided the Certificate Registrar with an
Investment Representation Letter substantially in the form of Exhibit
D-1 hereto (an "Investment Representation Letter"), to the effect that
the transfer is being made to a Qualified Institutional Buyer in
accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer of an
Individual Certificate pursuant to Regulation S after the expiration
of the Restricted Period if (1) the transferor has provided the
Certificate Registrar with a Regulation S Transfer Certificate
substantially in the form of Exhibit G hereto (a "Regulation S
Transfer Certificate"), and (2) the transferee furnishes to the
Certificate Registrar an Investment Representation Letter; and
(C) The Certificate Registrar shall register the transfer of an
Individual Certificate if prior to the transfer such transferee
furnishes to the Certificate Registrar (1) an Investment
Representation Letter to the effect that the transfer is being made to
an Institutional Accredited Investor or to an Affiliated Person in
accordance with an applicable exemption under the Act, and (2) an
opinion of counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register the transfer of
an Individual Certificate only if prior to the transfer the transferee
furnishes to the Certificate Registrar a written undertaking by the
transferor to reimburse the Trust for any costs incurred by it in
connection with the proposed transfer. In addition, the Certificate
Registrar may, as a condition of the registration of any such transfer,
require the transferor to furnish such other certificates, legal opinions
or other information (at the transferor's expense) as the Certificate
Registrar may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates. Notwithstanding
any provision to the contrary herein, so long as a Private Global
Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall only be
made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest in
such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such Beneficial Owner may, in
addition to complying with all applicable rules and procedures of the
Depository and CEDEL or Euroclear applicable to transfers by their
respective participants (the "Applicable Procedures"), transfer or
cause the transfer of such beneficial interest for an equivalent
beneficial interest in such Regulation S Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(A). Upon
receipt by the Certificate Registrar at the Corporate Trust Office of
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to another specified Agent Member's
account a beneficial interest in the Regulation S Global Certificate
in an amount equal to the Denomination of the beneficial interest in
the Rule 144A Global Certificate to be transferred, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member and the
Euroclear or CEDEL account, as the case may be, to be credited with,
and the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit K hereto given
by the Beneficial Owner of such interest, the Certificate Registrar
shall instruct the Depository or the Certificate Custodian, as
applicable, to reduce the Denomination of the Rule 144A Global
Certificate by the Denomination of the beneficial interest in the Rule
144A Global Certificate to be so transferred and, concurrently with
such reduction, to increase the Denomination of the Regulation S
Global Certificate by the Denomination of the beneficial interest in
the Rule 144A Global Certificate to be so transferred, and to credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be an Agent Member acting for or on behalf of
Euroclear or CEDEL, or both, as the case may be) a beneficial interest
in the Regulation S Global Certificate having a Denomination equal to
the amount by which the Denomination of the Rule 144A Global
Certificate was reduced upon such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest in
such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the
transfer of such beneficial interest for an equivalent beneficial
interest in such Regulation S Global Certificate only upon compliance
with the provisions of this Section 5.02(c)(ii)(B). Upon receipt by
the Certificate Registrar at the Corporate Trust Office of (1) written
instructions given in accordance with the Applicable Procedures from
an Agent Member directing the Certificate Registrar to credit or cause
to be credited to another specified Agent Member's account a
beneficial interest in the Regulation S Global Certificate in an
amount equal to the Denomination of the beneficial interest in the
Rule 144A Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member and, in the case
of a transfer pursuant to and in accordance with Regulation S, the
Euroclear or CEDEL account, as the case may be, to be credited with,
and the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit L hereto given
by the Beneficial Owner of such interest, the Certificate Registrar
shall instruct the Depository or the, as applicable, to reduce the
Denomination of the Rule 144A Global Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A Global
Certificate to be so transferred and, concurrently with such
reduction, to increase the Denomination of the Regulation S Global
Certificate by the aggregate Denomination of the beneficial interest
in the Rule 144A Global Certificate to be so transferred, and to
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Regulation S Global
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Global Certificate was reduced upon such
transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a Regulation S
Global Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Global Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in the related Rule 144A Global Certificate, such Beneficial Owner
may, in addition to complying with all Applicable Procedures, transfer
or cause the transfer of such beneficial interest for an equivalent
beneficial interest in such Rule 144A Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(C). Upon
receipt by the Certificate Registrar at the Corporate Trust Office of
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to another specified Agent Member's
account a beneficial interest in the Rule 144A Global Certificate in
an amount equal to the Denomination of the beneficial interest in the
Regulation S Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member or, if such account is held
for Euroclear or CEDEL, the Euroclear or CEDEL account, as the case
may be, to be debited for, such beneficial interest, and (3) with
respect to a transfer of a beneficial interest in a Regulation S
Global Certificate for a beneficial interest in the related Rule 144A
Global Certificate (i) during the Restricted Period, a certificate in
the form of Exhibit M hereto given by the holder of such beneficial
interest or (ii) after the Restricted Period, an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, the Certificate
Registrar shall instruct the Depository or the Certificate Custodian,
as applicable, to reduce the Denomination of the Regulation S Global
Certificate by the aggregate Denomination of the beneficial interest
in the Regulation S Global Certificate to be transferred, and,
concurrently with such reduction, to increase the Denomination of the
Rule 144A Global Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Global Certificate to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in
such Rule 144A Global Certificate having a Denomination equal to the
amount by which the Denomination of the Regulation S Global
Certificate was reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global Certificate to a
transferee wishing to take delivery in the form of an Individual
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Individual Certificate described in a
legend set forth on the face of such Certificate substantially in the form
of Exhibit H as attached hereto (the "Securities Legend"), and such
transferee agrees that it will transfer such Individual Certificate only as
provided therein and herein. No such transfer shall be made and the
Certificate Registrar shall not register any such transfer unless such
transfer is made in accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will require
delivery in the form of an Individual Certificate and the Certificate
Registrar shall register such transfer only upon compliance with the
provisions of Section 5.02(c)(i)(C).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate Registrar only upon
compliance with the provisions of Sections 5.02(c)(i)(A) and (B),
respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Global Certificate to an Individual
Certificate pursuant to subparagraph (B) above shall be made prior to
the expiration of the Restricted Period.
Upon acceptance for exchange or transfer of a beneficial interest in a
Private Global Certificate for an Individual Certificate, as provided
herein, the Certificate Registrar shall endorse on the schedule affixed to
the related Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global Certificate and made a part
thereof) an appropriate notation evidencing the date of such exchange or
transfer and a decrease in the Denomination of such Private Global
Certificate equal to the Denomination of such Individual Certificate issued
in exchange therefor or upon transfer thereof. Unless determined otherwise
by the Certificate Registrar in accordance with applicable law, an
Individual Certificate issued upon transfer of or exchange for a beneficial
interest in the Private Global Certificate shall bear the Securities
Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Global Certificate or the related Rule 144A Global Certificate, such
transfer may be effected only in accordance with the Applicable Procedures
and this Section 5.02(c)(iv). Upon receipt by the Certificate Registrar at
the Corporate Trust Office of (1) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(a),
(2) written instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Certificate Registrar to credit or cause
to be credited to another specified Agent Member's account a beneficial
interest in such Regulation S Global Certificate or such Rule 144A Global
Certificate, as the case may be, in an amount equal to the Denomination of
the Individual Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member and, in the case of any transfer
pursuant to Regulation S, the Euroclear or CEDEL account, as the case may
be, to be credited with such beneficial interest, and (4) (x) an Investment
Representation Letter from the transferee and, if delivery is to be taken
in the form of a beneficial interest in the Regulation S Global
Certificate, a Regulation S Transfer Certificate from the transferor or (y)
an Investment Representation Letter from the transferee to the effect that
such transferee is a Qualified Institutional Buyer if delivery is to be
taken in the form of a beneficial interest in the Rule 144A Global
Certificate, the Certificate Registrar shall cancel such Individual
Certificate, execute and deliver a new Individual Certificate for the
Denomination of the Individual Certificate not so transferred, registered
in the name of the Holder or the Holder's transferee (as instructed by the
Holder), and the Certificate Registrar shall instruct the Depository as the
Certificate Custodian, as applicable, to increase the Denomination of the
Regulation S Global Certificate or the Rule 144A Global Certificate, as the
case may be, by the Denomination of the Individual Certificate to be so
transferred, and to credit or cause to be credited to the account of the
Person specified in such instructions who, in the case of any increase in
the Regulation S Global Certificate during the Restricted Period, shall be
an Agent Member acting for or on behalf of Euroclear or CEDEL, or both, as
the case may be, a corresponding Denomination of the Rule 144A Global
Certificate or the Regulation S Global Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional
Buyer take delivery in the form of a beneficial interest in a Private
Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates, an
exchange of an Individual Certificate or Certificates for a beneficial
interest in a Private Global Certificate and an exchange of an Individual
Certificate or Certificates for another Individual Certificate or
Certificates (in each case, whether or not such exchange is made in
anticipation of subsequent transfer, and, in the case of the Private Global
Certificates, so long as the Private Global Certificates remain outstanding
and are held by or on behalf of the Depository), may be made only in
accordance with this Section 5.02 and in accordance with the rules of the
Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or replacement
of Certificates not bearing the Securities Legend, the Certificates so issued
shall not bear the Securities Legend. If Certificates are issued upon the
transfer, exchange or replacement of Certificates bearing the Securities Legend,
or if a request is made to remove the Securities Legend on a Certificate, the
Certificates so issued shall bear the Securities Legend, or the Securities
Legend shall not be removed, as the case may be, unless there is delivered to
the Certificate Registrar such satisfactory evidence, which may include an
opinion of counsel (at the expense of the party requesting the removal of such
legend) familiar with United States securities laws, as may be reasonably
required by the Certificate Registrar, that neither the Securities Legend nor
the restrictions on transfers set forth therein are required to ensure that
transfers of any Certificate comply with the provisions of Rule 144A or Rule 144
under the Act or that such Certificate is not a "restricted security" within the
meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence,
the Certificate Registrar shall execute and deliver a Certificate that does not
bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the Holder of any Individual Certificate may transfer or exchange
the same in whole or in part (with a denomination equal to any authorized
denomination) by surrendering such Certificate at the Corporate Trust Office or
at the office of any transfer agent appointed as provided under this Agreement,
together with an instrument of assignment or transfer (executed by the Holder or
its duly authorized attorney), in the case of transfer, and a written request
for exchange, in the case of exchange. Following a proper request for transfer
or exchange, the Certificate Registrar shall, within five Business Days of such
request if made at such Corporate Trust Office or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at the Corporate Trust Office or at the office of such
transfer agent, as the case may be, to the transferee (in the case of transfer)
or Holder (in the case of exchange) or send by first Class mail (at the risk of
the transferee in the case of transfer or Holder in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual Certificate issued
in exchange for a beneficial interest in a Public Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors, as described herein. In the event that a
Responsible Officer of the Certificate Registrar becomes aware that such an
Individual Certificate or beneficial interest in a Private Global Certificate is
being held by or for the benefit of a Person who is not an Eligible Investor, or
that such holding is unlawful under the laws of a relevant jurisdiction, then
the Certificate Registrar shall have the right to void such transfer, if
permitted under applicable law, or to require the investor to sell such
Individual Certificate or beneficial interest in a Private Global Certificate to
an Eligible Investor within fourteen days after notice of such determination and
each Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding transfer and
exchange, transfers of the Global Certificates shall be limited to transfers of
such Global Certificates in whole, but not in part, to nominees of the
Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
(i) Subject to Section 5.02(e), transfers of the Class B-4H, Class V-1,
Class V-2, Class R and Class LR Certificates may be made only in accordance with
this Section 5.02(i). The Certificate Registrar shall register the transfer of a
Class B-4H, Class V-1, Class V-2, Class R or Class LR Certificate only if (x)
the transferor has advised the Certificate Registrar in writing that such
Certificate is being transferred to a Qualified Institutional Buyer, an
Affiliated Person or, in the case of a transfer of a Class R or Class LR
Certificate prior to the Residual Trigger Date, an Institutional Accredited
Investor and (y) prior to such transfer the transferee furnishes to the
Certificate Registrar an Investment Representation Letter. In addition, the
Certificate Registrar may as a condition of the registration of any such
transfer require the transferor to furnish such other certifications, legal
opinions or other information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Servicer, the Trustee nor the Certificate
Registrar is obligated to register or qualify the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R or Class LR
Certificates under the Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Servicer, the Trustee and the Certificate Registrar, against
any loss, liability or expense that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(k) No transfer of any Class A-1D, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class
V-2, Class R or Class LR Certificate (each, a "Restricted Certificate") shall be
made to (i) an employee benefit plan subject to the fiduciary responsibility
provisions of ERISA, or Section 4975 of the Code, or a governmental plan subject
to any federal, state or local law ("Similar Law"), which is to a material
extent, similar to the foregoing provisions of ERISA or the Code (collectively,
a "Plan") or (ii) a collective investment fund in which a Plan is invested, an
insurance company that is using the assets of any insurance company separate
account or general account in which the assets of any such Plan are invested (or
which are deemed pursuant to ERISA or any Similar Law to include assets of
Plans) to acquire any such Restricted Certificate or any other Person acting on
behalf of any Plan or using the assets of any Plan to acquire any such
Restricted Certificate, other than an insurance company using the assets of its
general account under circumstances whereby such transfer to such insurance
company would not constitute a "prohibited transaction" within the meaning of
Section 406 or 407 of ERISA, Section 4975 of the Code, or a materially similar
characterization under any Similar Law. Each prospective transferee of a
Restricted Certificate shall either (i) deliver to the Depositor, the
Certificate Registrar and the Trustee, a transfer or representation letter,
substantially in the form of Exhibit D-2 hereto, stating that the prospective
transferee is not a Person referred to in (i) or (ii) above or (ii) in the event
the transferee is such an entity specified in (i) or (ii) above, except in the
case of a Residual Certificate, which may not be transferred unless the
transferee represents it is not such an entity, such entity shall provide an
opinion of counsel in form and substance satisfactory to the Certificate
Registrar that the purchase or holding of the certificates by or on behalf of a
plan will not result in the assets of the trust being deemed to be "plan assets"
and subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of ERISA and the Code or Similar Law, will not
constitute or result in a prohibited transaction within the meaning of Section
406 or 407 of ERISA or Section 4975 of the Code, and will not subject the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Registrar to any obligation or liability. Neither the Trustee, the Servicer nor
the Certificate Registrar shall register a Class R or Class LR Certificate in
any Person's name unless such Person has provided the letter referred to in
clause (i) of the preceding sentence. The transferee of a beneficial interest in
a Global Certificate that is a Restricted Certificate shall be deemed to
represent that it is not a Plan or a Person acting on behalf of any Plan or
using the assets of any Plan to acquire such interest other than an insurance
company using the assets of its general account under circumstances whereby such
transfer to such insurance company would not constitute a "prohibited
transaction" within the meaning of Section 406 or 407 of ERISA, Section 4975 of
the Code, or a materially similar characterization under any Similar Law. Any
transfer of a Restricted Certificate that would violate or result in a
prohibited transaction under ERISA or Section 4975 of the Code shall be deemed
absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be deemed
by the acceptance or acquisition of such Ownership Interest to have agreed to be
bound by the following provisions and the rights of each Person acquiring any
Ownership Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be a
Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman) on
behalf of any Person that is not a Permitted Transferee. Any such
Person shall promptly notify the Certificate Registrar of any change
or impending change in its status (or the status of the beneficial
owner of such Ownership Interest) as a Permitted Transferee. Any
acquisition described in the first sentence of this Section 5.02(l) by
a Person who is not a Permitted Transferee or by a Person who is
acting as an agent of a Person who is not a Permitted Transferee shall
be void and of no effect, and the immediately preceding owner who was
a Permitted Transferee shall be restored to registered and beneficial
ownership of the Ownership Interest as fully as possible. Thirty (30)
days after the Residual Trigger Date, any Ownership Interest owned by
an Institutional Accredited Investor on such date shall mandatorily be
redeemed and simultaneously reissued to Nomura Securities
International, Inc.; provided, however, that such mandatory redemption
and reissuance shall not occur if such Institutional Accredited
Investor has previously provided to the Trustee and the Certificate
Registrar (i) a Residual Transfer Opinion or (ii) evidence that such
Ownership Interest is held by a Permitted Transferee who is a
Qualified Institutional Buyer.
(ii) No Ownership Interest may be Transferred, and no such Transfer shall
be registered in the Certificate Register, without the express written
consent of the Certificate Registrar, and the Certificate Registrar
shall not recognize the Transfer, and such proposed Transfer shall not
be effective, without such consent with respect thereto. In connection
with any proposed Transfer of any Ownership Interest, the Certificate
Registrar shall, as a condition to such consent, (x) require delivery
to it in form and substance satisfactory to it, and the proposed
transferee shall deliver to the Certificate Registrar and to the
proposed transferor an affidavit in substantially the form attached as
Exhibit C-1 (a "Transferee Affidavit") of the proposed transferee (A)
that such proposed transferee is a Permitted Transferee and (B)
stating that (i) the proposed transferee historically has paid its
debts as they have come due and intends to do so in the future, (ii)
the proposed transferee understands that, as the holder of an
Ownership Interest, it may incur liabilities in excess of cash flows
generated by the residual interest, (iii) the proposed transferee
intends to pay taxes associated with holding the Ownership Interest as
they become due, (iv) the proposed transferee will not transfer the
Ownership Interest to any Person that does not provide a Transferee
Affidavit or as to which the proposed transferee has actual knowledge
that such Person is not a Permitted Transferee or is acting as an
agent (including a broker, nominee or other middleman) for a Person
that is not a Permitted Transferee, and (v) the proposed transferee
expressly agrees to be bound by and to abide by the provisions of this
Section 5.02(e) and (y) other than in connection with the initial
issuance of the Class R and Class LR Certificates, require a statement
from the proposed transferor substantially in the form attached as
Exhibit C-2 (the "Transferor Letter"), that the proposed transferor
has no actual knowledge that the proposed transferee is not a
Permitted Transferee and has no actual knowledge or reason to know
that the proposed transferee's statements in the preceding clauses
(x)(B)(i) or (iii) are false.
(iii)Notwithstanding the delivery of a Transferee Affidavit by a proposed
transferee under clause (ii) above, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the proposed
transferee is not a Permitted Transferee, no Transfer to such proposed
transferee shall be effected and such proposed Transfer shall not be
registered on the Certificate Register; provided, however, that the
Certificate Registrar shall not be required to conduct any independent
investigation to determine whether a proposed transferee is a
Permitted Transferee.
Upon notice to the Certificate Registrar that there has occurred a Transfer
to any Person that is a Disqualified Organization or an agent thereof (including
a broker, nominee, or middleman) in contravention of the foregoing restrictions,
and in any event not later than 60 days after a request for information from the
transferor of such Ownership Interest, or such agent, the Certificate Registrar
and the Trustee agree to furnish to the IRS and the transferor of such Ownership
Interest or such agent such information necessary to the application of Section
860E(e) of the Code as may be required by the Code, including, but not limited
to, the present value of the total anticipated excess inclusions with respect to
such Class R or Class LR Certificate (or portion thereof) for periods after such
Transfer. At the election of the Certificate Registrar and the Trustee, the
Certificate Registrar and the Trustee may charge a reasonable fee for computing
and furnishing such information to the transferor or to such agent referred to
above; provided, however, that such Persons shall in no event be excused from
furnishing such information.
Within one (1) Business Day after notice from the Servicer of the
occurrence of the Residual Trigger Date, the Trustee shall forward such notice
to any Institutional Accredited Investor who is the holder of an Ownership
Interest on such date. Thirty (30) days after the Residual Trigger Date, the
Trustee shall mandatorily redeem any Ownership Interest held by an Institutional
Accredited Investor and reissue such Ownership Interest to Nomura Securities
International, Inc.; provided, however, the Trustee shall not effect such
mandatory redemption and reissuance of such Ownership Interest if such
Institutional Accredited Investor has delivered to the Trustee and Certificate
Registrar either (i) evidence that such Ownership Interest is held by a
Permitted Transferee who is a Qualified Institutional Buyer or (ii) a Residual
Transfer Opinion. The Trustee and the Certificate Registrar shall take all steps
necessary to effect and document the mandatory redemption and reissuance of any
Ownership Interest thirty (30) days after the Residual Trigger Date pursuant to
this Section 5.02(l). For purposes of the REMIC Provisions, any mandatory
redemption and reissuance of any Ownership Interest pursuant to this Section
5.02(l) shall be deemed to be a purchase and sale between Nomura Securities
International, Inc. and the Institutional Accredited Investor that held the
related Ownership Interest prior to such redemption and reissuance.
Upon request of an Institutional Accredited Investor who is the holder of
an Ownership Interest on the Residual Trigger Date, the Depositor shall use its
best reasonable efforts to obtain a Residual Transfer Opinion, which opinion
shall be at the expense of the Person requesting such opinion.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Servicer and the Trustee an instrument in which such Paying
Agent shall agree with the Servicer and the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums have been
paid to the Certificateholders or disposed of as otherwise provided herein. The
initial Paying Agent shall be the Trustee. Except for LaSalle National Bank, as
the initial Paying Agent, the Paying Agent shall at all times be an entity
having a long-term unsecured debt rating of at least "AA" by Fitch and DCR and
"Aa2" by Moody's, or shall be otherwise acceptable to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (for purposes of this Section 5.05, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Depositor or the
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Depositor and the Servicer, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Depositor or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.06 as it shall deem necessary.
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
Servicer.
The Depositor, the Servicer and the Special Servicer each shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement.
SECTION 6.02. Merger or Consolidation of the Servicer.
Subject to the following paragraph, the Servicer will keep in full effect
its existence, rights and good standing as a corporation under the laws of the
State of Texas and will not jeopardize its ability to do business in each
jurisdiction in which the Mortgaged Properties are located or to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Servicer may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or consolidation to which it shall be a party,
or any Person succeeding to its business, shall be the successor of the Servicer
hereunder, and shall be deemed to have assumed all of the liabilities of the
Servicer hereunder, if each of the Rating Agencies has confirmed in writing that
such merger or consolidation or transfer of assets and succession, in and of
itself, will not cause a downgrade, qualification or withdrawal of the then
current ratings assigned by such Rating Agency to any Class of Certificates.
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and
Others.
Neither the Depositor, the Servicer, the Special Servicer nor any of the
directors, officers, employees or agents of the Depositor or the Servicer or the
Special Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor or the
Servicer or the Special Servicer or any such Person against any breach of
warranties or representations made herein, or against any liability which would
otherwise be imposed by reason of willful misconduct, bad faith, fraud or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties hereunder. The Depositor, the Servicer, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any appropriate
Person respecting any matters arising hereunder. The Depositor, the Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor or the Servicer or the Special Servicer shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense (including
legal fees and expenses) (i) incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misconduct, bad faith, fraud or
negligence (or in the case of the Servicer, by reason of any specific liability
imposed for a breach of the Servicing Standard) in the performance of duties
hereunder or by reason of reckless disregard of obligations or duties hereunder,
in each case by the Person being indemnified or (ii) imposed by any taxing
authority if such loss, liability or expense is not specifically reimbursable
pursuant to the terms of this Agreement. Neither the Depositor nor the Servicer
nor the Special Servicer shall be under any obligation to appear in, prosecute
or defend any legal action unless such action is related to its respective
duties under this Agreement and in its opinion does not expose it to any expense
or liability; provided, however, that the Depositor or the Servicer or the
Special Servicer may in its discretion undertake any action related to its
obligations hereunder which it may deem necessary or desirable with respect to
this Agreement and the rights and duties of the parties hereto and the interests
of the Certificateholders hereunder. In such event, the legal expenses and costs
of such action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor, the Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the Collection
Account as provided in Section 3.06 of this Agreement.
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the Special
Servicer.
(a) The Servicer and the Special Servicer may assign their respective
rights and delegate their respective duties and obligations under this Agreement
in connection with the sale or transfer of a substantial portion of their
mortgage servicing or asset management portfolio, provided that: (i) the
purchaser or transferee accepting such assignment and delegation (A) shall be
satisfactory to the Trustee and to the Depositor, (B) shall be an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia, authorized under such laws to perform the duties of a
servicer of mortgage loans or a Person resulting from a merger, consolidation or
succession that is permitted under Section 6.02, (C) shall be acceptable to each
Rating Agency as confirmed by a letter from each Rating Agency delivered to the
Trustee that such assignment or delegation will not cause a downgrade,
withdrawal or qualification of the then current ratings of the Certificates, and
(D) shall execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by the Servicer under this Agreement from
and after the date of such agreement; (ii) as confirmed by a letter from each
Rating Agency delivered to the Trustee, each Rating Agency's rating or ratings
of the Regular Certificates in effect immediately prior to such assignment, sale
or transfer will not be qualified, downgraded or withdrawn as a result of such
assignment, sale or transfer; (iii) the Servicer or the Special Servicer shall
not be released from its obligations under this Agreement that arose prior to
the effective date of such assignment and delegation under this Section 6.04;
and (iv) the rate at which the Servicer Compensation or Special Servicer
Compensation, as applicable (or any component thereof) is calculated shall not
exceed the rate then in effect. Upon acceptance of such assignment and
delegation, the purchaser or transferee shall be the successor Servicer or
Special Servicer, as applicable, hereunder.
(b) Except as provided in this Section 6.04, the Servicer and the Special
Servicer shall not resign from their respective obligations and duties hereby
imposed on them except upon determination that such duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel (obtained at the resigning Servicer's or
Special Servicer's expense) to such effect delivered to the Trustee.
(c) Certificateholders representing in the aggregate at least 51% of the
Voting Rights of all Certificateholders may remove the Servicer and the Special
Servicer upon the occurrence of an Event of Default under this Agreement, upon
written notice to the Servicer, the Special Servicer, the Depositor and the
Trustee, provided that each Rating Agency has confirmed in writing that such
removal will not result in a downgrade, qualification or withdrawal of the then
current ratings by such Rating Agency to any Class of Certificates. Without
limiting the generality of the succeeding paragraph, no such removal shall be
effective unless and until (i) the Servicer or the Special Servicer has been
paid any unpaid Servicer Compensation or Special Servicer Compensation, as
applicable, unreimbursed Advances (including Advance Interest Amounts thereon to
which it is entitled) and all other amounts to which the Servicer or the Special
Servicer is entitled hereunder to the extent such amounts accrue prior to such
effective date and (ii) with respect to a resignation by the Servicer, the
successor Servicer has deposited into the Investment Accounts from which amounts
were withdrawn to reimburse the terminated Servicer, an amount equal to the
amounts so withdrawn, to the extent such amounts would not have been permitted
to be withdrawn except pursuant to this paragraph, in which case the successor
Servicer shall, immediately upon deposit, have the same right of reimbursement
or payment as the terminated Servicer had immediately prior to its termination
without regard to the operation of this paragraph.
No resignation or removal of the Servicer or the Special Servicer as
contemplated by the preceding paragraphs shall become effective until the
Trustee or a successor Servicer or Special Servicer shall have assumed the
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer.
The Servicer and the Special Servicer shall afford the Depositor, the
Trustee and the Rating Agencies, upon reasonable notice, during normal business
hours access to all records maintained by it in respect of its rights and
obligations hereunder and access to its officers responsible for such
obligations. Upon request, the Servicer and the Special Servicer shall furnish
to the Depositor, Servicer, Special Servicer and the Trustee its most recent
financial statements (or in the case of the Servicer, the financial statements
of AMRESCO INC. if no separate financial statements have been prepared for the
Servicer) and such other information in its possession regarding its business,
affairs, property and condition, financial or otherwise as the party requesting
such information, in its reasonable judgment, determines to be relevant to the
performance of the obligations hereunder of the Servicer and the Special
Servicer. The Depositor may, but is not obligated to, enforce the obligations of
the Servicer or the Special Servicer hereunder which are in default and may, but
is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of such Person hereunder or exercise its rights hereunder, provided
that the Servicer and the Special Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. In the event the Depositor or its designee undertakes any such action
it will be reimbursed by the Trust Fund from the Collection Account as provided
in Section 3.06 and Section 6.03(a) hereof to the extent not recoverable from
the Servicer or Special Servicer, as applicable. Neither the Depositor nor the
Trustee and neither the Servicer, with respect to the Special Servicer, nor the
Special Servicer, with respect to the Servicer, shall have any responsibility or
liability for any action or failure to act by the Servicer or the Special
Servicer and neither such Person is obligated to monitor or supervise the
performance of the Servicer or the Special Servicer under this Agreement or
otherwise. Neither the Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate.
The Servicer or an Affiliate of the Servicer or the Special Servicer or an
Affiliate of the Special Servicer may become the Holder (or with respect to a
Global Certificate, Beneficial Owner) of any Certificate with the same rights it
would have if it were not the Servicer or the Special Servicer or an Affiliate
thereof. If, at any time during which the Servicer or the Special Servicer or an
Affiliate of the Servicer or the Special Servicer is the Holder or Beneficial
Owner of any Certificate, the Servicer or the Special Servicer proposes to take
action (including for this purpose, omitting to take action) that (i) is not
expressly prohibited by the terms hereof and would not, in the Servicer's or the
Special Servicer's good faith judgment, violate the Servicing Standard, and (ii)
if taken, might nonetheless, in the Servicer's or the Special Servicer's good
faith judgment, be considered by other Persons to violate the Servicing
Standard, the Servicer or the Special Servicer may seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (i) states that it is delivered pursuant to this Section 6.06, (ii)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate of the Servicer or
the Special Servicer, and (iii) describes in reasonable detail the action that
the Servicer or the Special Servicer proposes to take. The Trustee, upon receipt
of such notice, shall forward it to the Certificateholders (other than the
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
appropriate) together with such instructions for response as the Trustee shall
reasonably determine. If at any time Certificateholders holding greater than 50%
of the Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Servicer or its Affiliates or the Special
Servicer or its Affiliates) shall have consented in writing to the proposal
described in the written notice, and if the Servicer or the Special Servicer
shall act as proposed in the written notice, such action shall be deemed to
comply with the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Servicer or the Special Servicer, as applicable, of the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, except in the case of unusual
circumstances.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to remit to the Collection Account or any
failure by the Servicer to remit to the Trustee for deposit into the
Distribution Account, Upper-Tier Distribution Account, Excess Interest
Distribution Account, Interest Reserve Account or Default Interest
Distribution Account, any amount required to be so deposited by the
Servicer (including a P&I Advance) pursuant to, and at the time
specified by the terms of this Agreement; or
(ii) any failure on the part of the Servicer duly to observe or perform in
any material respect any other of the covenants or agreements or the
breach of any representations or warranties on the part of the
Servicer contained in this Agreement which continues unremedied for a
period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Servicer by the Depositor or the Trustee, or to the Servicer, the
Depositor and the Trustee by the Holders of Certificates evidencing
Percentage Interests of at least 25% of any Class affected thereby; or
(iii)confirmation in writing by any Rating Agency that failure to remove
the Servicer will, in and of itself, cause a downgrade, qualification
or withdrawal of the then current ratings assigned to any Class of
Certificates; or
(iv) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(v) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Servicer, or of or relating to all or substantially
all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of
its obligations; or
(vii)the Servicer shall fail to make any Property Advance required to be
made by the Servicer hereunder (whether or not the Trustee or the
Fiscal Agent makes such Advance), which failure continues unremedied
for a period of fifteen (15) days after the date on which such
Property Advance was first due (or for any shorter period as may be
required, if applicable, to avoid any lapse in insurance coverage
required under any Mortgage or this Agreement with respect to any
Mortgaged Property or to avoid any foreclosure or similar action with
respect to any Mortgaged Property by reason of a failure to pay real
estate taxes and assessments and if the Trustee makes a required
Property Advance pursuant to Section 3.08(a) due to the Servicer's
failure to make a required Advance, such Event of Default shall occur
immediately upon such Advance);
then, and in each and every such case, so long as a Servicer Event of Default
shall not have been remedied, the Trustee may, and at the written direction of
the Holders of at least 25% of the aggregate Voting Rights of all Certificates
shall, terminate the Servicer.
In the event that the Servicer is also the Special Servicer and the
Servicer is terminated as provided in this Section 7.01, the Servicer shall also
be terminated as Special Servicer.
(b) "Special Servicer Event of Default", wherever used herein, means any
one of the following events:
(i) any failure by the Special Servicer to remit to the Collection Account
any amount required to be so deposited by the Special Servicer
pursuant to and in accordance with the terms of this Agreement; or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements or the breach of any representations or warranties on the
part of the Special Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Special Servicer by the Servicer, the
Depositor or the Trustee, or to the Special Servicer, the Servicer,
the Depositor and the Trustee by the Holders of Certificates
evidencing Percentage Interests of at least 25% of any Class affected
thereby; or
(iii)confirmation in writing by any Rating Agency that failure to remove
the Special Servicer would, in and of itself, cause a downgrade,
qualification or withdrawal of the then current ratings assigned to
any Class of Certificates; or
(iv) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(v) the Special Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Special Servicer, or of or relating to all or
substantially all of its property; or
(vi) the Special Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer.
(c) In the event that the Servicer or the Special Servicer is terminated
pursuant to this Section 7.01, the Trustee (the "Terminating Party") shall, by
notice in writing to the Servicer or the Special Servicer, as the case may be
(the "Terminated Party"), terminate all of its rights and obligations under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
any rights it may have hereunder as a Certificateholder and any rights or
obligations that accrued prior to the date of such termination (including the
right to receive all amounts accrued or owing to it under this Agreement, plus,
in the case of the Servicer, interest at the Advance Rate on such amounts until
received to the extent such amounts bear interest as provided in this Agreement,
with respect to periods prior to the date of such termination and the right to
the benefits of Section 6.03 notwithstanding any such termination). On or after
the receipt by the Terminated Party, of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
or the Mortgage Loans or otherwise, shall pass to and be vested in the
Terminating Party pursuant to and under this Section and, without limitation,
the Terminating Party is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the Terminated Party, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The
Servicer and the Special Servicer each agree in the event it is terminated
pursuant to this Section 7.01 to promptly (and in any event no later than ten
Business Days subsequent to such notice) provide, at its own expense, the
Terminating Party with all documents and records requested by the Terminating
Party to enable the Terminating Party to assume its functions hereunder, and to
cooperate with the Terminating Party and the successor to its responsibilities
hereunder in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer to the successor Servicer
or Special Servicer or the Terminating Party, as applicable, for administration
by it of all cash amounts which shall at the time be or should have been
credited by the Servicer or the Special Servicer to the Collection Account, and
any REO Account, Lock-Box Account or Cash Collateral Account thereafter be
received with respect to the Mortgage Loans, and shall promptly provide the
Terminating Party or such successor Servicer or Special Servicer (which may
include the Trustee), as applicable, all documents and records reasonably
requested by it, such documents and records to be provided in such form as the
Terminating Party or such successor Servicer or Special Servicer shall
reasonably request (including electromagnetic form), to enable it to assume the
Servicer's or Special Servicer's function hereunder. All reasonable costs and
expenses of the Terminating Party or the successor Servicer or successor Special
Servicer incurred in connection with transferring the Mortgage Files to the
successor Servicer or Special Servicer and amending this Agreement to reflect
such succession as successor Servicer or successor Special Servicer pursuant to
this Section 7.01 shall be paid by the predecessor Servicer or the Special
Servicer, as applicable, upon presentation of reasonable documentation of such
costs and expenses. If the predecessor Servicer or Special Servicer (as the case
may be) has not reimbursed the Terminating Party or the successor Servicer or
Special Servicer for such expenses within 90 days after the presentation of
reasonable documentation, such expense shall be reimbursed by the Trust Fund;
provided that the Terminated Party shall not thereby be relieved of its
liability for such expenses.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer receives a
notice of termination pursuant to Section 7.01, the Terminating Party shall be
its successor in all respects in its capacity as Servicer or Special Servicer
under this Agreement and the transactions set forth or provided for herein and,
except as provided herein, shall be subject to all the responsibilities, duties,
limitations on liability and liabilities relating thereto and arising thereafter
placed on the Servicer or Special Servicer by the terms and provisions hereof;
provided, however, that (i) the Terminating Party shall have no
responsibilities, duties, liabilities or obligations with respect to any act or
omission of the Servicer or Special Servicer and (ii) any failure to perform, or
delay in performing, such duties or responsibilities caused by the Terminated
Party's failure to provide, or delay in providing, records, tapes, disks,
information or monies shall not be considered a default by such successor
hereunder. The Trustee, as successor Servicer or successor Special Servicer,
shall be indemnified to the full extent provided the Servicer or Special
Servicer, as applicable, under this Agreement prior to the Servicer's or the
Special Servicer's termination. The appointment of a successor Servicer or
successor Special Servicer shall not affect any liability of the predecessor
Servicer or Special Servicer which may have arisen prior to its termination as
Servicer or Special Servicer. The Terminating Party shall not be liable for any
of the representations and warranties of the Servicer or Special Servicer herein
or in any related document or agreement, for any acts or omissions of the
predecessor Servicer or Special Servicer or for any losses incurred in respect
of any Permitted Investment by the Servicer pursuant to Section 3.07 hereunder
nor shall the Trustee be required to purchase any Mortgage Loan hereunder. As
compensation therefor, the Terminating Party as successor Servicer or Special
Servicer shall be entitled to the Servicing Compensation or Special Servicing
Compensation, as applicable, and all funds relating to the Mortgage Loans that
accrue after the date of the Terminating Party's succession to which the
Servicer or Special Servicer would have been entitled if the Servicer or Special
Servicer, as applicable, had continued to act hereunder. In the event any
Advances made by the Servicer and the Trustee or the Fiscal Agent shall at any
time be outstanding, or any amounts of interest thereon shall be accrued and
unpaid, all amounts available to repay Advances and interest hereunder shall be
applied entirely to the Advances made by the Trustee or the Fiscal Agent (and
the accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act, or if the
Holders of Certificates entitled to at least 25% of the aggregate Voting Rights
so request in writing to the Trustee, or if neither the Trustee nor the Fiscal
Agent is rated by each Rating Agency in one of its two highest long-term debt
rating categories or if the Rating Agencies do not provide written confirmation
that the succession of the Trustee, as Servicer or Special Servicer, as
applicable, will not cause a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings assigned to
any Class of Certificates as evidenced in writing by each Rating Agency, as the
successor to the Servicer or Special Servicer, as applicable, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer or Special Servicer hereunder. No appointment of a successor to the
Servicer or Special Servicer hereunder shall be effective until the assumption
by such successor of all the Servicer's or Special Servicer's responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Servicer (or the Special Servicer if the Special Servicer is also the Servicer)
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided. Pending the
appointment of a successor to the Special Servicer, unless the Servicer is also
the Special Servicer, the Servicer shall act in such capacity. In connection
with such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Terminated Party
hereunder, provided, further, that if no successor to the Terminated Party can
be obtained to perform the obligations of such Terminated Party hereunder,
additional amounts shall be paid to such successor and such amounts in excess of
that permitted the Terminated Party shall be treated as Realized Losses. The
Depositor, the Trustee, the Servicer or Special Servicer and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Servicer or the Special Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Certificates and to each Rating Agency notice
of such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Servicer Event of Default or a Special
Servicer Event of Default, so long as such Servicer Event of Default or Special
Servicer Event of Default, if applicable, shall not have been remedied, the
Trustee, in addition to the rights specified in Section 7.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all Holders of
Certificates, waive any default by the Servicer or Special Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits (including P&I Advances) to or payments from the
Collection Account or the Distribution Account or in remitting payments as
received, in each case in accordance with this Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.05 shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall take action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors, employees,
agents or "control" persons within the meaning of the Act shall have any
liability arising out of or in connection with this Agreement, provided, that,
subject to Section 8.02, no provision of this Agreement shall be construed to
relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trustee has actual knowledge, and after the curing or
waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any resolutions,
certificates, statements, reports, opinions, documents, orders or
other instruments furnished to the Trustee that conform on their face
to the requirements of this Agreement without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii)The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to
greater than 50% of the Percentage Interests (or such other percentage
as is specified herein) of each affected Class, or of the aggregate
Voting Rights of the Certificates, relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) Neither the Trustee nor any of its respective directors, officers,
employees, agents or control persons shall be responsible for any act
or omission of any Custodian, Paying Agent or Certificate Registrar
that is not an Affiliate of the Trustee and that is selected other
than by the Trustee, performed or omitted in compliance with any
custodial or other agreement, or any act or omission of the Servicer,
Special Servicer, the Depositor or any other Person, including,
without limitation, in connection with actions taken pursuant to this
Agreement;
(v) The Trustee shall not be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its respective
duties as Trustee in accordance with this Agreement (and, if it does,
all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund), and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account, unless such legal
action arises out of the negligence or bad faith of the Trustee or any
breach of an obligation, representation, warranty or covenant of the
Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act, failure to
act or breach of any Person upon the occurrence of which the Trustee
may be required to act, unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure. The Trustee shall be deemed
to have actual knowledge of the Servicer's or the Special Servicer's
failure to provide scheduled reports, certificates and statements when
and as required to be delivered to the Trustee pursuant to this
Agreement.
None of the provisions contained in this Agreement shall require either the
Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend or risk its
own funds, or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if in
the opinion of the Trustee or the Fiscal Agent, respectively, the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer or the Special
Servicer under this Agreement, except during such time, if any, as the Trustee
shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer or the Special Servicer in accordance with the terms
of this Agreement. Neither the Trustee nor the Fiscal Agent shall be required to
post any surety or bond of any kind in connection with its performance of its
obligations under this Agreement and neither the Trustee nor the Fiscal Agent
shall be liable for any loss on any investment of funds pursuant to this
Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper
party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and
in accordance with such Opinion of Counsel;
(iii)(A) The Trustee shall be under no obligation to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; (B) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act; and (C)
provided, that subject to the foregoing clause (A), nothing contained
herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (which has not been cured or waived)
of which a Responsible Officer of the Trustee has actual knowledge, to
exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers, employees,
Affiliates, agents or "control" persons within the meaning of the Act
shall be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing
to do so by Holders of Certificates entitled to at least 25% (or such
other percentage as is specified herein) of the Percentage Interests
of any affected Class; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action. The reasonable
expense of every such investigation shall be paid by the Servicer or
the Special Servicer if an Event of Default shall have occurred and be
continuing relating to the Servicer, or the Special Servicer,
respectively, and otherwise by the Certificateholders requesting the
investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Depositor pursuant to this Agreement or the eligibility of any Mortgage
Loan for purposes of this Agreement.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Fiscal Agent or the Servicer, and the
Trustee, the Fiscal Agent and the Servicer assume no responsibility for their
correctness. The Trustee, the Fiscal Agent and the Servicer make no
representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan, or
related document. Neither the Trustee nor the Fiscal Agent shall at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage, any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement. Without limiting the foregoing, neither
the Trustee nor the Fiscal Agent shall be liable or responsible for: the
existence, condition and ownership of any Mortgaged Property; the existence of
any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Servicer pursuant to Section 7.02) or the enforceability
thereof; the existence of any Mortgage Loan or the contents of the related
Mortgage File on any computer or other record thereof (other than if the Trustee
shall assume the duties of the Servicer or the Special Servicer pursuant to
Section 7.02); the validity of the assignment of any Mortgage Loan to the Trust
Fund or of any intervening assignment; the completeness of any Mortgage File;
the performance or enforcement of any Mortgage Loan (other than if the Trustee
shall assume the duties of the Servicer or the Special Servicer pursuant to
Section 7.02); the compliance by the Depositor, the Servicer or the Special
Servicer with any warranty or representation made under this Agreement or in any
related document or the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of the Servicer or any loss resulting therefrom, it being understood that the
Trustee shall remain responsible for any Trust Fund property that it may hold in
its individual capacity; the acts or omissions of any of the Depositor, the
Servicer or the Special Servicer (other than if the Trustee shall assume the
duties of the Servicer pursuant to Section 7.02) or any subservicer or any
Borrower; any action of the Servicer (other than if the Trustee shall assume the
duties of the Servicer pursuant to Section 7.02) or any subservicer taken in the
name of the Trustee, except to the extent such action is taken at the express
written direction of the Trustee; the failure of the Servicer or the Special
Servicer or any subservicer to act or perform any duties required of it on
behalf of the Trust Fund or the Trustee hereunder; or any action by or omission
of the Trustee taken at the instruction of the Servicer or the Special Servicer
(other than if the Trustee shall assume the duties of the Servicer or the
Special Servicer pursuant to Section 7.02) unless the taking of such action is
not permitted by the express terms of this Agreement; provided, however, that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties as specifically set forth in this Agreement. Neither the Trustee nor the
Fiscal Agent shall be accountable for the use or application by the Depositor,
the Servicer or the Special Servicer of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor, the Servicer or the Special Servicer in respect of the
assignment of the Mortgage Loans or deposited in or withdrawn from the
Collection Account, Distribution Account, Upper-Tier Distribution Account, Lock
Box Account, Cash Collateral Account, Reserve Accounts, Interest Reserve
Account, Default Interest Distribution Account or Excess Interest Distribution
Account or any other account maintained by or on behalf of the Servicer or the
Special Servicer, other than any funds held by the Trustee or the Fiscal Agent,
as applicable. Neither the Trustee nor the Fiscal Agent shall have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall have
become the successor Servicer) or to record this Agreement. In making any
calculation hereunder which includes as a component thereof the payment or
distribution of interest for a stated period at a stated rate "to the extent
permitted by applicable law," the Trustee shall assume that such payment is so
permitted unless a Responsible Officer of the Trustee has actual knowledge, or
receives an Opinion of Counsel (at the expense of the Person asserting the
impermissibility) to the effect, that such payment is not permitted by
applicable law.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and Fiscal Agent
in its individual capacity or any other capacity may become the owner or pledgee
of Certificates, and may deal with the Depositor and the Servicer in banking
transactions, with the same rights it would have if it were not Trustee, Fiscal
Agent or such agent.
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(iii) except any such expense, disbursement or
advance as may arise from its negligence or bad faith; provided, however, that,
subject to the last paragraph of Section 8.01, neither the Trustee nor the
Fiscal Agent shall refuse to perform any of its duties hereunder solely as a
result of the failure to be paid the Trustee Fee and the Trustee's expenses or
any sums due to the Fiscal Agent.
The Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Servicer or the Special Servicer, respectively,
hereunder, pursuant to or otherwise arising from the resignation or removal of
the Servicer, in accordance with any of the provisions of this Agreement (and
including the reasonable fees and expenses and disbursements of its counsel and
all other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from the negligence or bad faith of the
Trustee; provided, that in the event that the Servicer is terminated pursuant to
Section 6.04(c), expenses incurred in connection with such transfer shall be
paid by the Certificateholders effecting such termination.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Servicer and the Special Servicer (each, an "Indemnifying Party")
shall indemnify the Trustee and the Fiscal Agent and their respective Affiliates
and each of the directors, officers, employees and agents of the Trustee, the
Fiscal Agent and their respective Affiliates (each, an "Indemnified Party"), and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Indemnified
Party may sustain in connection with this Agreement (including, without
limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud and/or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Servicer, any
agent of the Servicer or subservicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it
harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates, in each case to the extent and only to the
extent, such payments are expressly reimbursable under this Agreement or are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(iii), other than (i) those resulting from the
negligence, fraud, bad faith or willful misconduct of the Indemnified Party and
(ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The term "unanticipated expenses incurred by a
REMIC" shall include any fees, expenses and disbursement of any separate trustee
or co-trustee appointed hereunder, only to the extent such fees, expenses and
disbursements were not reasonably anticipated as of the Closing Date and the
losses, liabilities, damages, claims or expenses (including reasonable
attorneys' fees) incurred or advanced by an Indemnified Party in connection with
any litigation arising out of this Agreement, including, without limitation,
under Section 2.03, Section 3.10, the third paragraph of Section 3.11, Section
4.05 and Section 7.01. The right of reimbursement of the Indemnified Parties
under this Section 8.05(d) shall be senior to the rights of all
Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05
shall survive the termination or maturity of this Agreement or the resignation
or removal of the Trustee or the Fiscal Agent, as the case may be, as regards
rights accrued prior to such resignation or removal and (with respect to any
acts or omissions during their respective tenures) the resignation, removal or
termination of the Servicer, the Special Servicer, the Paying Agent, the
Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Agreement, having a combined capital and
surplus of at least $50,000,000 and a rating on its unsecured long-term debt of
at least "BBB" by Fitch and DCR and "Baa2" by Moody's (or at any time when there
is no Fiscal Agent appointed and acting hereunder or any such Fiscal Agent so
appointed has a rating on its long-term unsecured debt that is lower than "AA"
by Fitch and DCR and "Aa2" by Moody's (without regard to any plus or minus or
numeric qualifier), or meeting different standards provided that each Rating
Agency shall have confirmed in writing that such different standards would not,
in and of itself, result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates) and subject to supervision or
examination by federal or state authority and shall not be an Affiliate of the
Servicer (except during any period when the Trustee has assumed the duties of
the Servicer pursuant to Section 7.02); provided that, notwithstanding that the
long-term unsecured debt of LaSalle National Bank and ABN AMRO Bank N.V. are not
rated by DCR and Fitch, LaSalle National Bank shall not fail to qualify as
Trustee solely by virtue of the lack of such ratings until such time as either
DCR or Fitch shall notify the Trustee, the Servicer and the Special Servicer in
writing that LaSalle National Bank is no longer exempt from the foregoing rating
requirements imposed by this sentence. If a corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In the event that the place of business from which the
Trustee administers the Trust Fund is a state or local jurisdiction that imposes
a tax on the Trust Fund or the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions) the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax and continue as Trustee or (iii)
administer the Trust Fund from a state and local jurisdiction that does not
impose such a tax. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Servicer and each
Rating Agency. Upon such notice of resignation, the Fiscal Agent shall also be
deemed to have been removed and, accordingly, the Servicer shall promptly
appoint a successor Trustee, acceptable to each Rating Agency (such
acceptability confirmed in writing), and successor Fiscal Agent, which, if the
successor Trustee is not rated by each Rating Agency in one of its two highest
long-term debt rating categories, shall be acceptable to each Rating Agency
(such acceptability confirmed in writing), by written instrument, in triplicate,
which instrument shall be delivered to the resigning Trustee, with a copy to the
Fiscal Agent deemed removed, and the successor Trustee and successor Fiscal
Agent. If no successor Trustee and successor Fiscal Agent shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee and the Fiscal Agent may petition
any court of competent jurisdiction for the appointment of a successor Trustee
and successor Fiscal Agent.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor or Servicer, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor or the Servicer may remove the Trustee and the Fiscal Agent and the
Servicer shall promptly appoint a successor Trustee and successor Fiscal Agent
by written instrument, which shall be delivered to the Trustee and the Fiscal
Agent so removed and to the successor Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the Voting Rights
may at any time remove the Trustee and the Fiscal Agent (and any removal of the
Trustee shall be deemed to be a removal also of the Fiscal Agent) and appoint a
successor Trustee and successor Fiscal Agent by written instrument or
instruments, in seven originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Trustee so removed, one complete set to the Fiscal Agent deemed
removed, one complete set to the successor Trustee so appointed and one complete
set to the successor Fiscal Agent so appointed.
In the event of removal of the Trustee the Fiscal Agent shall be deemed to
have been removed.
In the event that the Trustee or Fiscal Agent is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that occurred prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and appointment
of a successor Trustee and, if such trustee is not rated by each Rating Agency
in one of its two highest long-term debt rating categories, a successor Fiscal
Agent pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee and, if
necessary, Fiscal Agent as provided in Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any Fiscal Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer and to the predecessor Trustee and predecessor Fiscal Agent, as the
case may be, instruments accepting their appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee and predecessor Fiscal
Agent, shall become effective and such successor Trustee and successor Fiscal
Agent, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee or Fiscal
Agent herein, provided that each Rating Agency shall have approved in writing
the appointment of such successor Trustee and successor Fiscal Agent. The
predecessor Trustee shall deliver to the successor Trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor Trustee all such rights, powers, duties and
obligations. No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such Trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant to this
Agreement shall meet the eligibility requirements set forth in Section 8.06
hereof and shall be acceptable to each Rating Agency as evidenced by written
confirmation that such appointment will not cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
8.06, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-trustee or separate trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor Trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason of any
act or omission of any other trustee under this Agreement. The Depositor and the
Trustee acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, or if the separate trustee or co-trustee is an
employee of the Trustee, the Trustee acting alone may accept the resignation of
or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Every such instrument shall be filed with the Trustee.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of affecting the liability of or affording protection to
such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial Fiscal
Agent hereunder for the purposes of exercising and performing the obligations
and duties imposed upon the Fiscal Agent by Sections 3.24 and 4.06.
(b) The Fiscal Agent undertakes to perform such duties and only such duties
as are specifically set forth in Sections 3.24 and 4.06.
(c) No provision of this Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent failure to act or its own willful
misfeasance; provided, however, that (i) the duties and obligations of the
Fiscal Agent shall be determined solely by the express provisions of Sections
3.24 and 4.06, the Fiscal Agent shall not be liable except for the performance
of such duties and obligations, no implied covenants or obligations shall be
read into this Agreement against the Fiscal Agent and, in the absence of bad
faith on the part of the Fiscal Agent, the Fiscal Agent may conclusively rely,
as to the truth and correctness of the statements or conclusions expressed
therein, upon any resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Fiscal Agent by the
Depositor, the Servicer, the Special Servicer or the Trustee and which on their
face do not contradict the requirements of this Agreement, and (ii) the
provisions of clause (ii) of Section 8.01(c) shall apply to the Fiscal Agent.
(d) Except as otherwise provided in Section 8.11(c), the Fiscal Agent also
shall have the benefit of provisions of clauses (i), (ii), (iii) (other than the
proviso thereto), (iv), (v) (other than the proviso thereto) and (vi) of Section
8.02(a).
ARTICLE IX
TERMINATION
SECTION 9.01. Termination.
(a) The respective obligations and responsibilities of the Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created hereby
with respect to the Certificates (other than the obligation to make certain
payments and to send certain notices to Certificateholders as hereinafter set
forth) shall terminate immediately following the occurrence of the last action
required to be taken by the Trustee pursuant to this Article IX on the
Termination Date; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of twenty-one years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador of
the United States to the United Kingdom, living on the date hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC shall be
terminated and the assets of the Trust Fund shall be sold or otherwise disposed
of in connection therewith, only pursuant to a "plan of complete liquidation"
within the meaning of Code Section 860F(a)(4)(A) providing for the actions
contemplated by the provisions hereof pursuant to which the applicable Notice of
Termination is given and requiring that the Trust Fund, the Upper-Tier REMIC and
the Lower-Tier REMIC shall terminate on a Distribution Date occurring not more
than 90 days following the date of adoption of the plan of complete liquidation.
For purposes of this Section 9.01(b), the Notice of Termination given pursuant
to Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Servicer in the final federal income tax returns of the Upper-Tier REMIC
and the Lower-Tier REMIC.
(c) Any holder of a Class LR Certificate representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
all property acquired in respect of any Mortgage Loan, at a purchase price,
payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage Loan
included in the Trust Fund as of the last day of the month
preceding such Distribution Date;
(B) the fair market value of all other property included in the Trust
Fund as of the last day of the month preceding such Distribution
Date, as determined by an Independent appraiser acceptable to the
Servicer as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of each
such Mortgage Loan (including for this purpose any Mortgage Loan
as to which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the Excess Rate, to the
extent applicable), to the last day of the month preceding such
Distribution Date;
(D) the aggregate amount of unreimbursed Advances, with interest
thereon at the Advance Rate, and unpaid Servicing Compensation,
Special Servicing Compensation, Trustee Fees and Trust Fund
expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all other
property acquired in respect of any Mortgage Loan in the Trust Fund,
on the last day of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to the Servicer as
of a date not more than 30 days prior to the last day of the month
preceding such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to this Agreement or by the Trust Fund in connection with
the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant
to this Section 9.01(c) shall be borne by the party exercising its purchase
rights hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding, the holders
of the Class V-1 Certificates shall receive that portion of the proceeds of a
sale of the assets of the Trust Fund allocable to the Net Default Interest, as
their interests may appear, and the holders of the Class V-2 Certificates shall
receive that portion of the proceeds of a sale of the assets of the Trust Fund
allocable to Excess Interest, as their interests may appear.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance of each Certificate or Lower-Tier
Regular Interest, together with amounts required to be distributed on such
Distribution Date pursuant to Section 4.01(a) or (ii) if no such Classes of
Certificates are then outstanding, to the Holders of the Class LR Certificates
of any amount remaining in the Collection Account or the Distribution Account
and to the Holders of the Class R Certificates of any amount remaining in the
Upper-Tier Distribution Account, in either case, following the later to occur of
(A) the receipt or collection of the last payment due on any Mortgage Loan
included in the Trust Fund or (B) the liquidation or disposition pursuant to
Section 3.18 of the last asset held by the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to this Section
9.01 shall be mailed by the Trustee to affected Certificateholders with a copy
to the Servicer and each Rating Agency at their addresses shown in the
Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of
the Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii)state that the final distribution to Certificateholders will be made
only upon presentation and surrender of Certificates at the office of
the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class LR Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(g) The Holder of a more than a 50% Percentage Interest in the Class LR
Certificates may purchase any Mortgage Loan on its Anticipated Repayment Date,
if any, at a price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Mortgage Loan on
such Anticipated Repayment Date;
(ii) all unpaid interest accrued on such principal balance of such Mortgage
Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date;
(iii)the aggregate amount of unreimbursed Advances with respect to such
Mortgage Loan, with interest thereon at the Advance Rate, and unpaid
Special Servicing Compensation, Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(iv) the amount of any Liquidation Expenses incurred by the Trust Fund in
connection with such purchase;
provided, that, such Holder, at its expense, has provided the Trustee with an
opinion of counsel to the effect that such purchase would not (x) result in a
gain which would be subject to the tax on net income derived from "prohibited
transactions" imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on the Lower-Tier REMIC or the Upper-Tier REMIC
under the REMIC Provisions or (y) cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC; such opinion relying upon
appraisals of the fair market value (for the purposes of Section 860F(c)(1) of
the Code) of such Mortgage Loan by at least three Independent appraisers.
The proceeds of any such purchase shall be deposited in the Collection
Account and disbursed as provided herein.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.02. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Mortgage Loan, unless such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates of any Class shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in writing,
shall be deemed to have been given upon receipt (except that notices to Holders
of Class B-4B, Class R and Class LR Certificates or Holders of any Class of
Certificates no longer held through a Depository and instead held in registered,
definitive form shall be deemed to have been given upon being sent by first
class mail, postage prepaid) as follows:
If to the Trustee, to:
LaSalle National Bank
135 South LaSalle Street
Suite 1740
Chicago, Illinois 60603
Attention: Asset-Backed Securities
Trust Services, Nomura 1996-D3
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
135 South LaSalle Street
Chicago, IL 60603
Attention: Asset-Backed Securities
Trust Services, Nomura 1996-D3
If to the Depositor, to:
Asset Securitization Corporation
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Perry Gershon and
Sheryl McAfee
With copies to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Anna H. Glick
If to the Servicer, to:
AMRESCO Management, Inc.
235 Peachtree Street
Suite 900
Atlanta, Georgia 30303
Attention: Legal Counsel
With copies to:
AMRESCO, Inc.
700 N. Pearl Street
Suite 1700
Dallas, Texas 75201
Attention: General Counsel
and
Weil, Gotschal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Paul T. Cohn
If to the Special Servicer, to:
CRIIMI MAE Services Limited Partnership
CRI Building
11200 Rockville Pike
Rockville, Maryland 20852
Attention: Fred Burchill
David Iannarone, Esq.
If to the Mortgage Loan Seller, to:
Nomura Asset Capital Corporation
2 World Financial Center
Building B, 21st Floor
New York, NY 10281-1198
Attention: Perry Gershon and Sheryl McAfee
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then, to the
extent permitted by applicable law, such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 10.06. Notice to the Depositor and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide notice to
the Depositor and each Rating Agency with respect to each of the following of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii)the merger, consolidation, resignation or termination of the
Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d) or
2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account or the
Distribution Account;
(vii)any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(viii) each report to Certificateholders described in Section 4.02 and
Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an anchor lease at a
retail Mortgaged Property;
(xi) any termination of licensing certification at a Mortgaged Property
securing a Senior Housing/Healthcare Loan; and
(xii) any material damage to a Mortgaged Property.
(b) The Servicer shall promptly furnish to each Rating Agency copies of the
following:
(i) each of its annual statements as to compliance described in Section
3.14;
(ii) each of its annual independent public accountants' servicing reports
described in Section 3.15; and
(iii)a copy of each rent roll and each operating and other financial
statement and occupancy reports, to the extent such information is
required to be delivered under a Mortgage Loan, in each case to the
extent collected pursuant to Section 3.03.
(c) The Servicer shall furnish each Rating Agency with such information
with respect to the Trust Fund, a Mortgaged Property, a Borrower and a
non-performing or Specially Serviced Mortgage Loan as such Rating Agency shall
reasonably request and which the Servicer can reasonably obtain. The Rating
Agencies shall not be charged any fee or expense in connection therewith.
(d) Notices to each Rating Agency shall be addressed as follows:
Duff & Phelps Credit Rating Co.
55 E. Monroe Street, 35th Floor
Chicago, Illinois 60603
Attention: Structured Finance -
Commercial Real Estate Monitoring
Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Moody's Investor Services, Inc.
99 Church Street
New York, New York 10007
Attention: Managing Director
Commercial Mortgage-Backed Securities
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein or therein that
may be defective or inconsistent with any other provisions herein or therein,
(iii) to amend any provision hereof to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Regular
Certificates by each Rating Agency, (iv) to amend or supplement any provisions
herein or therein that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be inconsistent with the provisions of this Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
This Agreement or any Custodial Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Fiscal Agent with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under this
Agreement, without the consent of the Holders of all Certificates
representing all of the Percentage Interest of the Class or Classes
affected hereby;
(iii)alter the Servicing Standard or the obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, at any time and from time to time, without the consent of the
Certificateholders, may amend this Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Trust REMIC as two separate REMICs, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
In the event that neither the Depositor nor any successor thereto, if any,
is in existence, any amendment under this Section 10.07 shall be effective with
the consent of the Trustee, the Fiscal Agent, and the Servicer, in writing, and
to the extent required by this Section, the Certificateholders. Promptly after
the execution of any amendment, the Servicer shall forward to the Trustee and
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.07 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
method of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Servicer and/or the Trustee, the Servicer and the Trustee shall have
received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property).
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the Servicer
may request and shall be entitled to rely conclusively upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by either Rating Agency to maintain the rating issued by
it or requested by the Trustee for any purpose described in clause (i), (ii),
(iii) or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee on
behalf of Certificateholders as contemplated by this Agreement and the sale by
the Depositor of the Certificates be, and be treated for all purposes as, a sale
by the Depositor of the undivided portion of the beneficial interest in the
Trust Fund represented by the Certificates. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Distribution Account, Upper-Tier
Account, Default Interest Distribution Account and Excess Interest Distribution
Account, whether in the form of cash, instruments, securities or other property;
(c) the possession by the Trustee (or the Custodian on its behalf) of Notes and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section
9-305 of the Delaware and Illinois Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09. Streit Act.
Any provisions required to be contained in this Agreement by Section 126
and/or Section 130-k or Article 4-A of the New York Real Property Law are hereby
incorporated herein, and such provisions shall be in addition to those conferred
or imposed by this Agreement; provided, however, that to the extent that such
Section 126 and/or Section 130-k shall not have any effect, and if said Section
126 and/or Section 130-k should at any time be repealed or cease to apply to
this Agreement or be construed by judicial decision to be inapplicable, said
Section 126 and/or Section 130-k shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
SECTION 10.10. No Intended Third-Party Beneficiaries.
No Person other than a party to this Agreement and any Certificateholder
shall have any rights with respect to the enforcement of any of the rights or
obligations hereunder. Without limiting the foregoing, the parties to this
Agreement specifically state that no Borrower, property manager or other party
to a Mortgage Loan is an intended third-party beneficiary of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent have caused their names to be signed hereto by
their respective officers thereunto duly authorized all as of the day and year
first above written.
Signed and acknowledged ASSET SECURITIZATION
in the presence of: CORPORATION,
as Depositor
- - ------------------------------- By:
Print Name: ---------------------------------
Name:
Title:
- - -------------------------------
Print Name:
Signed and acknowledged AMRESCO MANAGEMENT, INC.
in the presence of as Servicer
- - ------------------------------- By:
Print Name: ---------------------------------
Name:
Title:
- - -------------------------------
Print Name:
Signed and acknowledged CRIIMI MAE SERVICES LIMITED
in the presence of: PARTNERSHIP
as Special Servicer
- - ------------------------------- By: CRIIMI MAE Management, Inc.,
Print Name: its General Partner
- - ------------------------------- By:
Print Name: --------------------------------
Name:
Title:
Signed and acknowledged LASALLE NATIONAL BANK,
in the presence of: as Trustee, Custodian,
Certificate Registrar
- - ------------------------------- and Paying Agent
Print Name:
- - ------------------------------- By:
Print Name: -----------------------------------
Name:
Title:
ABN AMRO BANK N.V., ABN AMRO BANK N.V.,
as Fiscal Agent as Fiscal Agent
By: By:
----------------------------- -----------------------------------
Name: Name:
Title: Title:
Acknowledged by Nomura Securities
International, Inc., solely with respect
to Section 3.07 and Section 5.02(l)
By:
---------------------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this day of October, 1996, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared , to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at Two World Financial Center,
New York, New York; that s/he is the of ASSET SECURITIZATION
CORPORATION, a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- - ---------------------------
Name: Hugh Hall
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On this day of October, 1996, before me, the undersigned, a Notary
Public in and for the State of , duly commissioned and sworn, personally
appeared , to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
is the of AMRESCO Management, Inc.,
the corporation described in and that executed the foregoing instrument;
and that he/she signed his/her name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of .
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- - ---------------------------
Name: Hugh Hall
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On this day of October, 1996, before me, the undersigned, a Notary
Public in and for the State of , duly commissioned and sworn, personally
appeared , to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
; is the of
CRIIMI MAE Services Limited Partnership, the corporation described in and that
executed the foregoing instrument; and that he/she signed his/her name thereto
under authority of the board of directors of said corporation and on behalf
of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of .
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- - ---------------------------
Name: Hugh Hall
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this day of October, 1996, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared , to me known who, by me duly sworn, did depose
and acknowledge before me and say that he resides at 6757 Taos Court, Lisle,
Illinois; that he is a Vice President of LASALLE NATIONAL BANK, a nationally
chartered bank, the corporation described in and that executed the foregoing
instrument; and that he signed his name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- - ---------------------------
Name: Hugh Hall
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF )
On this day of October, 1996, before me, the undersigned, a Notary
Public in and for the State of Illinois, duly commissioned and sworn, personally
appeared , to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at , ,
Illinois; that s/he is a of ABN AMRO BANK N.V., a nationally
chartered bank, the corporation described in and that executed the foregoing
instrument; and that s/he signed her/his name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for
the State of Illinois
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- - ---------------------------
Name: Hugh Hall
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-1A
Pass-Through Rate: 7.01000%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1A Certificates: October 13, 2026
$64,985,025.00
CUSIP: 045424BZ0 ISIN: US045424BZ01
Common Code: 7072503 Initial Certificate
Balance of this Certificate:
$
No.: A-1A----
This certifies that ---------------------- is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1A Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by
commercial and multifamily properties. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1B, Class A-1C, Class A-CS1,
Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-1A Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-1A Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums, as provided in the Pooling
and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-1A Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an opinion
of counsel, athe expense of the party requesting such amendment, or a
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1A Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:-----------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1A Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:-----------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1A Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1A
Certificate of the entire Percentage Interest represented by the within Class
A-1A Certificates to the above-named Assignee(s) and to deliver such Class A-1A
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: -------------
-------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of --------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-1B
Pass-Through Rate: 7.21000%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1B Certificates: October 13, 2026
$154,000,000.00
CUSIP: 045424CA4 ISIN: US04524CA41
Common Code: 7072511 Initial Certificate
Balance of this Certificate:
$
No.: A-1B----
This certifies that --------------------- is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1B Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by
commercial and multifamily properties. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1C, Class A-CS1,
Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-1B Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-1B Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-1B Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an opinion
of counsel, athe expense of the party requesting such amendment, or a
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1B Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:--------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1B Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:--------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1B Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1B
Certificate of the entire Percentage Interest represented by the within Class
A-1B Certificates to the above-named Assignee(s) and to deliver such Class A-1B
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ----------------
------------------------------------
Signature by or on behalf of
Assignor(s)
-----------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ----------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-1C
Pass-Through Rate: 7.40000%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1C Certificates: October 13, 2026
$321,000,000.00
CUSIP: 045424CB2 ISIN: US045424CB24
Common Code: 7072520 Initial Certificate
Balance of this Certificate:
$
No.: A-1C------
This certifies that --------------- is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-1C Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by commercial and
multifamily properties. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-CS1, Class A-1D, Class A-CS2,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class LR Certificates
(together with the Class A-1C Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-1C Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-1C Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an opinion
of counsel, athe expense of the party requesting such amendment, or a
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1C Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:--------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1C Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:--------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1C Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1C
Certificate of the entire Percentage Interest represented by the within Class
A-1C Certificates to the above-named Assignee(s) and to deliver such Class A-1C
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: --------------------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-CS1
Pass-Through Rate: 2.11527%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class A-CS1 Certificates: October 13, 2026
$64,985,025.00
CUSIP: 045424CC0 ISIN: US045424CC07
Common Code: 7072538 Initial Notional
Balance of this Certificate:
$
No.: A-CS1------
This certifies that ------------------ is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-CS1 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
commercial and multifamily properties. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-CS1 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of interest then distributable, if any, allocable to the
Class A-CS1 Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-CS1 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an opinion
of counsel, athe expense of the party requesting such amendment, or a
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, at an issue price of
6.48777% of the initial Class A-CS1 Notional Amount and a stated redemption
price at maturity equal to all interest distributions hereon, and is issued with
original issue discount ("OID") for federal income tax purposes. Assuming (a)
that this Certificate pays in accordance with projected cash flows reflecting
the prepayment assumption of 0% CPR (as defined in the Prospectus Supplement
dated October 16, 1996 with respect to the offering of the Class A-1A, Class
A-1B, Class A-1C, Class A-CS1, Class A-1D, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates) used to price this Certificate, (b) that all ARD Loans
prepay on the related Anticipated Repayment Dates and (c) that the interest rate
at which distributions of interest on this Certificate actually will be made
will be determined as though the pass-through rate on this Certificate
applicable to the first Distribution Date will not change thereafter: (i) the
amount of OID as a percentage of the initial Class A-CS1 Notional Amount is
approximately 1.25816735%; (ii) the annual yield to maturity of this
Certificate, compounded monthly, is approximately 8.07%; and (iii) the amount of
OID allocable to the short first accrual period (October 22, 1996 to November
13, 1996) as a percentage of the initial Class A-CS1 Notional Amount, calculated
using the exact method, is approximately 0.03050952%.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-CS1 Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:--------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-CS1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:--------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-CS1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-CS1
Certificate of the entire Percentage Interest represented by the within Class
A-CS1 Certificates to the above-named Assignee(s) and to deliver such Class
A-CS1 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: -----------------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CLASS A-1D CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B AND
CLASS A-1C CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-1D
Pass-Through Rate: 7.47000%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class A-1D Certificates: October 13, 2026
$19,564,674.00
CUSIP: 045424CD8 ISIN: US045424CD89
Common Code: 7072546 Initial Notional
Balance of this Certificate:
$
No.: A-1D-----
This certifies that ------------------ is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by
commercial and multifamily properties. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-1D Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of interest then distributable, if any, allocable to the
Class A-1D Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-1D Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust for any costs (including the
cost of the Certificate Registrar's counsel's review of the documents and any
legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided in Section 5.02 of the Pooling and Servicing Agreement)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an opinion
of counsel, athe expense of the party requesting such amendment, or a
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1D Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:--------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1D Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:--------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1D Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1D
Certificate of the entire Percentage Interest represented by the within Class
A-1D Certificates to the above-named Assignee(s) and to deliver such Class A-1D
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ----------------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-CS2
REGULATION S GLOBAL CERTIFICATE
Pass-Through Rate: 9.12527%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class A-CS2 Certificates: October 13, 2026
$623,691,525.00
CUSIP: 045424CJ5 ISIN: US045424CJ59
CINS: USU04509BD3
Common Code: 7072481 Initial Notional
Balance of this Certificate:
$
Regulation S Global No.: A-CS2------
This certifies that ------------------ is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-CS2 Certificates. The Trust Fund, described
more fully below, consists primarily of pool of Mortgage Loans secured by
commercial commercial and multifamily properties. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-CS2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - --------
* The Pass-Through Rate is the rate for the Distribution Date occurring in
November 1996. The Pass-Through Rate for all subsequent Distribution Dates shall
be calculated as provided in the Pooling and Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of interest then distributable, if any, allocable to the
Class A-CS2 Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-CS2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust for any costs (including the
cost of the Certificate Registrar's counsel's review of the documents and any
legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided in Section 5.02 of the Pooling and Servicing Agreement)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, at an issue price of
11.97803% of the initial Class A-CS2 Notional Amount and a stated redemption
price at maturity equal to all interest distributions hereon, and is issued with
original issue discount ("OID") for federal income tax purposes. Assuming (a)
that this Certificate pays in accordance with projected cash flows reflecting
the prepayment assumption of 0% CPR (as defined in the Prospectus Supplement
dated October 16, 1996 with respect to the offering of the Class A-1A, Class
A-1B, Class A-1C, Class A-CS1, Class A-1D, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates) used to price this Certificate, (b) that all ARD Loans
prepay on the related Anticipated Repayment Dates and (c) that the interest rate
at which distributions of interest on this Certificate actually will be made
will be determined as though the pass-through rate on this Certificate
applicable to the first Distribution Date will not change thereafter: (i) the
amount of OID as a percentage of the initial Class A-CS2 Notional Amount is
approximately 6.48279121%; (ii) the annual yield to maturity of this
Certificate, compounded monthly, is approximately 8.57%; and (iii) the amount of
OID allocable to the short first accrual period (October 22, 1996 to November
13, 1996) as a percentage of the initial Class A-CS2 Notional Amount, calculated
using the exact method, is approximately 0.05978515%.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-CS2 Regulation S
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:---------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-CS2 Regulation S Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:---------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
or Rule Regulation S Global
Certificate exchanged or
transferred for, or issued
in exchange for or upon Remaining Principal
transfer of, an interest in Amount of this
this Regulation S Regulation S Notation
Date Global Certificate Global Certificate Made By
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-CS2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-CS2
Certificate of the entire Percentage Interest represented by the within Class
A-CS2 Certificates to the above-named Assignee(s) and to deliver such Class
A-CS2 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ------------------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-CS2
RULE 144A GLOBAL CERTIFICATE
Pass-Through Rate: 9.12527%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class A-CS2 Certificates: October 13, 2026
$623,691,525.00
CUSIP: 045424CJ5 ISIN: US054424CJ59
CINS: USU04509BD3
Common Code: 7072481 Initial Notional
Balance of this Certificate:
$
Rule 144A Global No.: A-CS2-----
This certifies that ------------------ is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-CS2 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
commercial and multifamily properties. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-CS2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of interest then distributable, if any, allocable to the
Class A-CS2 Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-CS2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust for any costs (including the
cost of the Certificate Registrar's counsel's review of the documents and any
legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided in Section 5.02 of the Pooling and Servicing Agreement)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an opinion
of counsel, athe expense of the party requesting such amendment, or a
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, at an issue price of
11.97803% of the initial Class A-CS2 Notional Amount and a stated redemption
price at maturity equal to all interest distributions hereon, and is issued with
original issue discount ("OID") for federal income tax purposes. Assuming (a)
that this Certificate pays in accordance with projected cash flows reflecting
the prepayment assumption of 0% CPR (as defined in the Prospectus Supplement
dated October 16, 1996 with respect to the offering of the Class A-1A, Class
A-1B, Class A-1C, Class A-CS1, Class A-1D, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates) used to price this Certificate, (b) that all ARD Loans
prepay on the related Anticipated Repayment Dates and (c) that the interest rate
at which distributions of interest on this Certificate actually will be made
will be determined as though the pass-through rate on this Certificate
applicable to the first Distribution Date will not change thereafter: (i) the
amount of OID as a percentage of the initial Class A-CS2 Notional Amount is
approximately 6.48279121%; (ii) the annual yield to maturity of this
Certificate, compounded monthly, is approximately 8.57%; and (iii) the amount of
OID allocable to the short first accrual period (October 22, 1996 to November
13, 1996) as a percentage of the initial Class A-CS2 Notional Amount, calculated
using the exact method, is approximately 0.05978515%.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-CS2 Rule 144A
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By:---------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-CS2 Rule 144A Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:---------------------------------
Authorized Officer
Schedule A
Certificate Balance of Individual
Certificates or Rule Regulation S
Global Certificate exchanged or
transferred for, or issued in
exchange for or upon transfer of, Remaining Principal
an interest in this Rule 144A Amount of this Rule Notation
Date Global Certificate 144A Global Certificate Made By
---- ------------------ ----------------------- -------
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -----------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-CS2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-CS2
Certificate of the entire Percentage Interest represented by the within Class
A-CS2 Certificates to the above-named Assignee(s) and to deliver such Class
A-CS2 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: -----------
Signature by or on behalf of
Assignor(s)
-------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or-------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-7
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1 CLASS A-1D AND CLASS A-CS2 CERTIFICATES AS AND TO THE EXTENT
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-2
Pass-Through Rate: 7.42700%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: October 13, 2026
$39,129,349.00
CUSIP: 045424CE6 ISIN: US045424CE62
Common Code: 7072554 Initial Certificate
Balance of this Certificate:
$
No.: A-2------
This certifies that -------------- is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by commercial and
multifamily properties. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-CS2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class LR Certificates
(together with the Class A-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - ----------
* The Pass-Through Rate is for the Distribution Date occurring in November 1996.
The Pass-Through Rate for all subsequent Distribution Dates shall be calculated
as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-2 Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-2 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Advances
and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:-------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date:---------- ----------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by -------------------------------------------- the
Assignee(s) named above, or --------------------------------------------- as its
(their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CLASS A-3 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2 AND CLASS A-2 CERTIFICATES AS AND TO
THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-3
Pass-Through Rate: 7.52600%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-3 Certificates: October 13, 2026
$35,216,414.00
CUSIP: 045424CF3 ISIN: US045424CF38
Common Code: 7072562 Initial Certificate
Balance of this Certificate:
$
No.: A-3-----
This certifies that ---------------- is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-3 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by
commercial and multifamily properties. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-4, Class A-5, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class
LR Certificates (together with the Class A-3 Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - ----------
* The Pass-Through Rate is for the Distribution Date occurring in November 1996.
The Pass-Through Rate for all subsequent Distribution Dates shall be calculated
as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-3 Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-3 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-3 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-3 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as
Authenticating Agent
By:--------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-3
Certificate of the entire Percentage Interest represented by the within Class
A-3 Certificates to the above-named Assignee(s) and to deliver such Class A-3
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ----------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - ------------------------------------------------------ for the account of
- - --------------------------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: -----------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CLASS A-4 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2 AND CLASS A-3 CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-4
Pass-Through Rate: 7.82200%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-4 Certificates: October 13, 2026
$39,129,349.00
CUSIP: 045424CG1 ISIN: US045424CG11
Common Code: 7072589 Initial Certificate
Balance of this Certificate:
$
No.: A-4---
This certifies that ------------ is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-4 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of and multifamily properties. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D, Class A-CS2, Class A-2,
Class A-3, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-4H,
Class V-1, Class V-2, Class R and Class LR Certificates (together with the Class
A-4 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - ----------
* The Pass-Through Rate is the rate for the Distribution Date occurring in
November 1996. The Pass-Through Rate for all subsequent Distribution Dates shall
be calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-4 Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-4 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-4 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:---------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-4 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-4 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-4
Certificate of the entire Percentage Interest represented by the within Class
A-4 Certificates to the above-named Assignee(s) and to deliver such Class A-4
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ----------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - ---------------------------------------------------------------------------- for
the account of ----------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------ the
Assignee(s) named above, or ------------------------------------------ as its
(their) agent.
By: ----------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-10
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CLASS A-5 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2, CLASS A-3 AND CLASS A-4
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS A-5
Pass-Through Rate: 8.16500%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-5 Certificates: October 13, 2026
$15,651,739.00
CUSIP: 045424CH9 ISIN: US045424CH93
Common Code: 7072597 Initial Certificate
Balance of this Certificate:
$
No.: A-5----
This certifies that --------------- is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-5 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by commercial and
multifamily properties. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-CS2, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class LR Certificates
(together with the Class A-5 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - ----------
* The Pass-Through Rate is the rate for the Distribution Date occurring in
November 1996. The Pass-Through Rate for all subsequent Distribution Dates shall
be calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class A-5 Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-5 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-5 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:--------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-5 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:---------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - ------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-5 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-5
Certificate of the entire Percentage Interest represented by the within Class
A-5 Certificates to the above-named Assignee(s) and to deliver such Class A-5
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ----------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
- - -------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by -------------------------------------------- the
Assignee(s) named above, or -------------------------------------------- as its
(their) agent.
By: ----------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CLASS B-1 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2, CLASS A-3, CLASS A-4 AND
CLASS A-5 CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS B-1
RULE 144A GLOBAL CERTIFICATE
Pass-Through Rate: 9.12527%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-1 Certificates: October 13, 2026
$43,042,284.00
CUSIP: 045424CK2 ISIN: USU04509BE12
CINS: USU04509BE1
Initial Certificate
Balance of this Certificate:
$
Rule 144A Global No.:B-1----
This certifies that --------------- is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by commercial and
multifamily properties. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-2, Class B-3,
Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class LR Certificates
(together with the Class B-1 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - ----------
* The Pass-Through Rate is for the Distribution Date occurring in November 1996.
The Pass-Through Rate for all subsequent Distribution Dates shall be calculated
as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class B-1 Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-1 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any Paying
Agent or any agent of any of them shall be affected by notice to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust for any costs (including the
cost of the Certificate Registrar's counsel's review of the documents and any
legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided in Section 5.02 of the Pooling and Servicing Agreement)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, and based on its issue
price of 88.01563% and a stated redemption price at maturity equal to its
initial principal balance (plus nine days of interest at the pass-through rate
hereon), is issued with original issue discount ("OID") for federal income tax
purposes. Assuming (a) that this Certificate pays in accordance with projected
cash flows reflecting the prepayment assumption of of 0% CPR (as defined in the
Prospectus Supplement dated October 16, 1996 with respect to the offering of the
Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D, Class A-2, Class
A-3, Class A-4 and Class A-5 Certificates) used to price this Certificate and
(b) that all ARD Loans prepay on the related Anticipated Repayment Dates: (i)
the amount of OID as a percentage of the initial principal balance of this
Certificate is approximately 11.98437500%; (ii) the annual yield to maturity of
this Certificate, compounded monthly, is approximately 10.88%; and (iii) the
amount of OID allocable to the short first accrual period (October 22, 1996 to
November 13, 1996) as a percentage of the initial principal balance of this
Certificate, calculated using the exact method, is approximately 0.07620208%.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-1 Rule 144A
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is the Class B-1 Rule 144A Certificate referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:------------------------------------------
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of Individual
Certificates or Rule Regulation S
Global Certificate exchanged or
transferred for, or issued in
exchange for or upon transfer of, Remaining Principal
an interest in this Rule 144A Amount of this Rule Notation
Date Global Certificate 144A Global Certificate Made By
---- ------------------ ----------------------- -------
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-1
Certificate of the entire Percentage Interest represented by the within Class
B-1 Certificates to the above-named Assignee(s) and to deliver such Class B-1
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date:----------
------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ---------------------------------------------------------.
This information is provided by ---------------------------------------------the
Assignee(s) named above, or -------------------------------------------- as its
(their) agent.
By: ------------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-12
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CLASS B-2 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2, CLASS A-3, CLASS A-4,
CLASS A-5 AND CLASS B-1 CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS B-2
RULE 144A GLOBAL CERTIFICATE
Pass-Through Rate: 9.12527%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-2 Certificates: October 13, 2026
$27,390,544.00
CUSIP: 045424CL0 ISIN: US045424CL06
CINS: USU04509BF8 Initial Certificate
Balance of this Certificate:
$
Rule 144A Global No.: B-2----
This certifies that --------------- is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by commercial and
multifamily properties. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-CS2, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-3,
Class B-4, Class B-4H, Class V-1, Class V-2, Class R and Class LR Certificates
(together with the Class B-2 Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 1, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
- - ----------
* The Pass-Through Rate is for the Distribution Date occurring in November 1996.
The Pass-Through Rate for all subsequent Distribution Dates shall be calculated
as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the thirteenth day of each month, or
if such day is not a Business Day, the Business Day immediately following such
day, commencing in November, 1996 (each such date, a "Distribution Date")
provided, however, that in any month the Distribution Date will be no earlier
than the second Business Day following the eleventh day of such month and,
provided further, that if the eleventh day of any month is not a Business Day,
the Distribution Date shall be the third Business Day following the eleventh day
of such month, to the Person in whose name this Certificate is registered as of
the related Record Date, an amount equal to such Person's pro rata share (based
on the Percentage Interest represented by this Certificate) of that portion of
the aggregate amount of principal and interest then distributable, if any,
allocable to the Class B-2 Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-2 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on the eleventh day of the month
preceding the month in which such Distribution Date occurs and ends on the tenth
day of the month in which such Distribution Date occurs, provided that the first
Interest Accrual Period shall commence on the Cut-off Date and end on November
10, 1996. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in November 1996,
is calculated based on a 360-day year consisting of twelve 30-day months. The
Interest Accrual Period with respect to the Distribution Date occurring in
November 1996 will be deemed to consist of nineteen (19) days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day; provided, however, that
with respect to the Distribution Date occurring in November 1996, the Record
Date will be the Closing Date, except as specified in the Pooling and Servicing
Agreement. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first class mail to the address set forth therefor in
the Certificate Register or, provided that such Certificateholder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues received
in respect of any REO Property; (v) the Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreement and any proceeds
thereof; (vi) any Assignments of Leases, Rents and Profits and any security
agreements; (vii) any indemnities or guaranties, Escrow Accounts or other
collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust for any costs (including the
cost of the Certificate Registrar's counsel's review of the documents and any
legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided in Section 5.02 of the Pooling and Servicing Agreement)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee,
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling and Servicing Agreement or the
Custodial Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class LR Holder terminates the Trust Fund as
described above within such 30 day period. All costs and expenses incurred by
any and all parties to the Pooling and Servicing Agreement or by the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee shall
be entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, and based on its issue
price of 74.71875% and a stated redemption price at maturity equal to its
initial principal balance (plus nine days of interest at the pass-through rate
hereon), is issued with original issue discount ("OID") for federal income tax
purposes. Assuming (a) that this Certificate pays in accordance with projected
cash flows reflecting the prepayment assumption of of 0% CPR (as defined in the
Prospectus Supplement dated October 16, 1996 with respect to the offering of the
Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D, Class A-2, Class
A-3, Class A-4 and Class A-5 Certificates) used to price this Certificate and
(b) that all ARD Loans prepay on the related Anticipated Repayment Dates: (i)
the amount of OID as a percentage of the initial principal balance of this
Certificate is approximately 25.28125000%; (ii) the annual yield to maturity of
this Certificate, compounded monthly, is approximately 13.03%; and (iii) the
amount of OID allocable to the short first accrual period (October 22, 1996 to
November 13, 1996) as a percentage of the initial principal balance of this
Certificate, calculated using the exact method, is approximately 0.08544607%.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-2 Rule 144A
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:--------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is the Class B-2 Rule 144A Certificate referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:-------------------------------------------
Authorized Officer
Schedule A
Individual Certificates
or Rule Regulation S
Global Certificate
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Rule Amount of this Rule Notation
Date 144A Global Certificate 144A Global Certificate Made By
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class B-2 Certificate of the entire Percentage Interest represented by the
within Class B-2 Certificates to the above-named Assignee(s) and to deliver such
Class B-2 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: -------------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ---------------------------------- the
Assignee(s) named above, or ------------------------------------------------- as
its (their) agent.
By: ________________________________
--------------------------------
[Please print or type name(s)]
--------------------------------
Title
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Taxpayer Identification Number
<PAGE>
EXHIBIT A-13
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CLASS B-3 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2, CLASS A-3, CLASS A-4,
CLASS A-5, CLASS B-1 AND CLASS B-2 CERTIFICATES AS AND TO THE EXTENT SET FORTH
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS B-3
RULE 144A GLOBAL CERTIFICATE
Pass-Through Rate: 9.12527%
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-3 Certificates: October 13, 2026
$7,825,869.00
CUSIP: 045424CM8 ISIN: US045424CM88
CINS: USU04509BG6
Initial Certificate
Balance of this Certificate:
$
Rule 144A Global No.: B-3-___
This certifies that ____________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class B-3 Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by commercial and multifamily properties. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-4, Class B-4H, Class V-1, Class V-2, Class R
and Class LR Certificates (together with the Class B-3 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of October 1, 1996
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of l986, as
amended.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the thirteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November, 1996 (each such date, a
"Distribution Date") provided, however, that in any month the Distribution Date
will be no earlier than the second Business Day following the eleventh day of
such month and, provided further, that if the eleventh day of any month is not a
Business Day, the Distribution Date shall be the third Business Day following
the eleventh day of such month, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class B-3 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class B-3 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date commences on the eleventh
day of the month preceding the month in which such Distribution Date occurs and
ends on the tenth day of the month in which such Distribution Date occurs,
provided that the first Interest Accrual Period shall commence on the Cut-off
Date and end on November 10, 1996. Interest for each Interest Accrual Period,
other than the Interest Accrual Period with respect to the Distribution Date
occurring in November 1996, is calculated based on a 360-day year consisting of
twelve 30-day months. The Interest Accrual Period with respect to the
Distribution Date occurring in November 1996 will be deemed to consist of
nineteen (19) days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class LR Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to the Pooling and Servicing Agreement and
any proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee, and the Fiscal Agent with the consent of the
Holders of the Regular Certificates evidencing not less than 66 2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Pooling and Servicing Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement or the Custodial Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMIC as two separate REMICs, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than
a 50% Percentage Interest in such may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination
as provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, and based on
its issue price of 64.1875000% and a stated redemption price at maturity equal
to its initial principal balance (plus nine days of interest at the pass-through
rate hereon), is issued with original issue discount ("OID") for federal income
tax purposes. Assuming (a) that this Certificate pays in accordance with
projected cash flows reflecting the prepayment assumption of of 0% CPR (as
defined in the Prospectus Supplement dated October 16, 1996 with respect to the
offering of the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates) used to price this
Certificate and (b) that all ARD Loans prepay on the related Anticipated
Repayment Dates: (i) the amount of OID as a percentage of the initial principal
balance of this Certificate is approximately 35.81250000%; (ii) the annual yield
to maturity of this Certificate, compounded monthly, is approximately 15.16%;
and (iii) the amount of OID allocable to the short first accrual period (October
22, 1996 to November 13, 1996) as a percentage of the initial principal balance
of this Certificate, calculated using the exact method, is approximately
0.08504502%.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-3 Rule
144A Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By: _______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is the Class B-3 Rule 144A Certificate referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
or Rule Regulation S
Global Certificate
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Rule Amount of this Rule Notation
Date 144A Global Certificate 144 A Global Certificate Made By
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class B-3 Certificate of the entire Percentage Interest represented by the
within Class B-3 Certificates to the above-named Assignee(s) and to deliver such
Class B-3 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: --------------- -------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to -----------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:---------------------------------
--------------------------------
[Please print or type name(s)]
--------------------------------
Title
--------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CLASS B-4 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2, CLASS A-3, CLASS A-4,
CLASS A-5, CLASS B-1, CLASS B-2 AND CLASS B-4 CERTIFICATES AS AND TO THE EXTENT
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS B-4
RULE 144A GLOBAL CERTIFICATE
Pass-Through Rate: 9.12527%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-4 Certificates: October 13, 2026
$15,650,746.00
CUSIP: 045424CN6 ISIN: US045424CN61
CINS: USU04509BH4 Initial Certificate
Balance of this Certificate:
$
Rule 144A Global No.: B-4-___
This certifies that ____________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class B-4 Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by commercial and multifamily properties. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4H, Class V-1, Class V-2, Class R
and Class LR Certificates (together with the Class B-4 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of October 1, 1996
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
- - ----------
* The Pass-Through Rate is for the Distribution Date occurring in October 1996.
The Pass-Through Rate for all subsequent Distribution Dates shall be calculated
as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of l986, as
amended.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the thirteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November, 1996 (each such date, a
"Distribution Date") provided, however, that in any month the Distribution Date
will be no earlier than the second Business Day following the eleventh day of
such month and, provided further, that if the eleventh day of any month is not a
Business Day, the Distribution Date shall be the third Business Day following
the eleventh day of such month, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class B-4 Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class B-4 Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date commences on the eleventh
day of the month preceding the month in which such Distribution Date occurs and
ends on the tenth day of the month in which such Distribution Date occurs,
provided that the first Interest Accrual Period shall commence on the Cut-off
Date and end on November 10, 1996. Interest for each Interest Accrual Period,
other than the Interest Accrual Period with respect to the Distribution Date
occurring in November 1996, is calculated based on a 360-day year consisting of
twelve 30-day months. The Interest Accrual Period with respect to the
Distribution Date occurring in November 1996 will be deemed to consist of
nineteen (19) days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class LR Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to the Pooling and Servicing Agreement and
any proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee, and the Fiscal Agent with the consent of the
Holders of the Regular Certificates evidencing not less than 66 2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Pooling and Servicing Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement or the Custodial Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMIC as two separate REMICs, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than
a 50% Percentage Interest in such may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination
as provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, and based on
its issue price of 39.51563% and a stated redemption price at maturity equal to
its initial principal balance (plus nine days of interest at the pass-through
rate hereon), is issued with original issue discount ("OID") for federal income
tax purposes. Assuming (a) that this Certificate pays in accordance with
projected cash flows reflecting the prepayment assumption of of 0% CPR (as
defined in the Prospectus Supplement dated October 16, 1996 with respect to the
offering of the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates) used to price this
Certificate and (b) that all ARD Loans prepay on the related Anticipated
Repayment Dates: (i) the amount of OID as a percentage of the initial principal
balance of this Certificate is approximately 60.48437500%; (ii) the annual yield
to maturity of this Certificate, compounded monthly, is approximately 23.79%;
and (iii) the amount of OID allocable to the short first accrual period (October
22, 1996 to November 13, 1996) as a percentage of the initial principal balance
of this Certificate, calculated using the exact method, is approximately
0.6521104 %.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-4 Rule
144A Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By: _______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is the Class B-4 Rule 144A Certificate referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________
Authorized Officer
<PAGE>
Schedule A
Certificate Balance of
Individual Certificates
or Rule Regulation S
Global Certificate
exchanged or transferred
for, or issued in exchange
for or upon transfer of, Remaining Principal
an interest in this Rule Amount of this Rule Notation
Date 144A Global Certificate 144 A Global Certificate Made By
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-4 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class B-4 Certificate of the entire Percentage Interest represented by the
within Class B-4 Certificates to the above-named Assignee(s) and to deliver such
Class B-4 Certificate to the following address:
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Date: ___________ ----------------------------------
Signature by or on behalf of
Assignor(s)
----------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ________________________________
--------------------------------
[Please print or type name(s)]
--------------------------------
Title
--------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-15
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CLASS B-4H CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS A-CS1, CLASS A-1D, CLASS A-CS2, CLASS A-2, CLASS A-3, CLASS A-4,
CLASS A-5, CLASS B-1, CLASS B-2, AND CLASS B-3 CERTIFICATES AS AND TO THE EXTENT
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS B-4H
Pass-Through Rate: 9.12527%*
First Distribution Date: Cut-off Date: October 22, 1996
November 14, 1996
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-4H Certificates: October 13, 2026
$1,000.80
CUSIP: 045424CP1 ISIN: US045424CP10
Initial Certificate
Balance of this Certificate:
$
Individual Certificate No.: B-4H-___
This certifies that ________________________ is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class B-4H Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by commercial and multifamily properties. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class V-1, Class V-2, Class R
and Class LR Certificates (together with the Class B-4H Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of October 1, 1996
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
- - ----------
* The Pass-Through Rate is for the Distribution Date occurring in October 1996.
The Pass-Through Rate for all subsequent Distribution Dates shall be calculated
as provided in the Pooling and Servicing Agreement.
<PAGE>
This Certificate represents a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of l986, as
amended.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the thirteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November, 1996 (each such date, a
"Distribution Date") provided, however, that in any month the Distribution Date
will be no earlier than the second Business Day following the eleventh day of
such month and, provided further, that if the eleventh day of any month is not a
Business Day, the Distribution Date shall be the third Business Day following
the eleventh day of such month, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class B-4H Certificates for such
Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premium, as
provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below),
interest on the Class B-4H Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest
Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to
this Certificate, if any, will be payable on the related Distribution Date to
the extent provided in the Pooling and Servicing Agreement. The "Interest
Accrual Period" with respect to any Distribution Date commences on the eleventh
day of the month preceding the month in which such Distribution Date occurs and
ends on the tenth day of the month in which such Distribution Date occurs.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class LR Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to the Pooling and Servicing Agreement and
any proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee, and the Fiscal Agent with the consent of the
Holders of the Regular Certificates evidencing not less than 66 2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Pooling and Servicing Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement or the Custodial Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMIC as two separate REMICs, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than
a 50% Percentage Interest in such may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination
as provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
This Certificate is issued on October 22, 1996, and based on
its issue price of 39.51563% and a stated redemption price at maturity equal to
its initial principal balance (plus nine days of interest at the pass-through
rate hereon), is issued with original issue discount ("OID") for federal income
tax purposes. Assuming (a) that this Certificate pays in accordance with
projected cash flows reflecting the prepayment assumption of of 0% CPR (as
defined in the Prospectus Supplement dated October 16, 1996 with respect to the
offering of the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-1D,
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates) used to price this
Certificate and (b) that all ARD Loans prepay on the related Anticipated
Repayment Dates: (i) the amount of OID as a percentage of the initial principal
balance of this Certificate is approximately 60.48437500%; (ii) the annual yield
to maturity of this Certificate, compounded monthly, is approximately 23.79%;
and (iii) the amount of OID allocable to the short first accrual period (October
22, 1996 to November 13, 1996) as a percentage of the initial principal balance
of this Certificate, calculated using the exact method, is approximately
0.6521104 %.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-4H
Individual Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By: ______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is the Class B-4H Individual Certificate referred to in
the Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-4H Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class B-4H Certificate of the entire Percentage Interest represented by the
within Class B-4H Certificates to the above-named Assignee(s) and to deliver
such Class B-4H Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ___________ --------------------------------
Signature by or on behalf of
Assignor(s)
--------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-16
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS V-1
CUSIP: 045424CQ9 ISIN: US045424CQ92
Percentage Interest: 100%
No.: V-1-___
This certifies that ________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class V-1 Certificateholder is not entitled to interest or principal
distributions. The Class V-1 Certificateholder will be entitled to receive
distributions of Net Default Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by commercial and multifamily properties. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class R
and Class LR Certificates (together with the Class V-2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of October 1, 1996
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a pro rata, undivided beneficial
interest in any Net Default Interest received by the Trust Fund. This
Certificate does not represent a regular interest or a residual interest in the
Trust REMIC created pursuant to the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the thirteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November, 1996 (each such date, a
"Distribution Date") provided, however, that in any month the Distribution Date
will be no earlier than the second Business Day following the eleventh day of
such month and, provided further, that if the eleventh day of any month is not a
Business Day, the Distribution Date shall be the third Business Day following
the eleventh day of such month, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate Net Default Interest, if any, allocable to the
Class V-1 Certificates for such Distribution Date, all as more fully described
in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class LR Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to the Pooling and Servicing Agreement and
any proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee, and the Fiscal Agent with the consent of the
Holders of the Regular Certificates evidencing not less than 66 2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Pooling and Servicing Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement or the Custodial Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMIC as two separate REMICs, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than
a 50% Percentage Interest in such may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination
as provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class V-1
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By: _______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class V-1 Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class V-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class V-1 Certificate of the entire Percentage Interest represented by the
within Class V-1 Certificates to the above-named Assignee(s) and to deliver such
Class V-1 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ___________ -------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to ------------------------------------------------------------------------- for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-17
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS V-2
CUSIP: 045424CR7 ISIN: US045424CR75
Percentage Interest: 100%
No.: V-2-___
This certifies that ___________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class V-2 Certificateholder is not entitled to interest or principal
distributions. The Class V-2 Certificateholder will be entitled to receive
distributions of Excess Interest received from the borrowers. The Trust Fund,
described more fully below, consists primarily of a pool of Mortgage Loans
secured by commercial and multifamily properties. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class R
and Class LR Certificates (together with the Class V-2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of October 1, 1996
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a pro rata, undivided beneficial
interest in any Excess Interest received by the Trust Fund. This Certificate
does not represent a regular interest or a residual interest in the Trust REMIC
created pursuant to the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee, or the Paying Agent on behalf of the Trustee, will distribute
(other than the final distribution on any Certificate), on the thirteenth day of
each month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November, 1996 (each such date, a
"Distribution Date") provided, however, that in any month the Distribution Date
will be no earlier than the second Business Day following the eleventh day of
such month and, provided further, that if the eleventh day of any month is not a
Business Day, the Distribution Date shall be the third Business Day following
the eleventh day of such month, to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate Excess Interest, if any, allocable to the Class
V-2 Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class LR Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to the Pooling and Servicing Agreement and
any proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee, and the Fiscal Agent with the consent of the
Holders of the Regular Certificates evidencing not less than 66 2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Pooling and Servicing Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement or the Custodial Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMIC as two separate REMICs, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than
a 50% Percentage Interest in such may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination
as provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class V-2
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By: _______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class V-2 Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class V-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Class V-2 Certificate of the entire Percentage Interest represented by the
within Class V-2 Certificates to the above-named Assignee(s) and to deliver such
Class V-2 Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: --------------- -------------------------------
Signature by or on behalf of
Assignor(s)
-------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: -----------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds
to -----------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By: ------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-18
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO
PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE TRUST REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO
RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND IN
ACCORDANCE WITH ANY OTHER
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS R
CUSIP: 045424CS5 ISIN: US045424CS58
Percentage Interest: 100%
No.: R-___
This certifies that ___________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in the
Trust Fund. The Class R Certificateholder is not entitled to interest or
principal distributions. The Class R Certificateholder will be entitled to
receive the proceeds of the remaining assets of the Upper-Tier REMIC, if any, on
the Final Scheduled Distribution Date for the Certificates, after distributions
in respect of any accrued but unpaid interest on the Certificates and after
distributions in reduction of principal balance have reduced the principal
balances of the Certificates to zero. It is not anticipated that there will be
any assets remaining in the Upper-Tier REMIC or Trust Fund on the Final
Scheduled Distribution Date following the distributions on the Regular
Certificates. The Trust Fund, described more fully below, consists primarily of
a pool of Mortgage Loans secured by commercial and multifamily properties. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1A, Class A-1B, Class A-CS1, Class A-1C, Class A-1D, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-CS2, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-4H, Class V-1, Class V-2 and Class LR Certificates (together with the
Class R Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance
with, the terms of a Pooling and Servicing Agreement dated as of October 1, 1996
(the "Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(2) and 860D of the Internal Revenue Code of 1986, as
amended.
The Trustee makes no representation or warranty as to any of
the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of
failure of Certificateholders to tender their Certificates shall be set aside
and held in trust for the account of the non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
and Servicing Agreement shall not have been surrendered for cancellation within
six months after the time specified in such notice, the Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Trustee shall thereafter hold such amounts for the benefit of such Holders
until the earlier of (i) its termination as Trustee under the Pooling and
Servicing Agreement and the transfer of such amounts to a successor Trustee or
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class LR Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among
other things, certain collections and recoveries in respect of the Mortgage
Loans, as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to the Pooling and Servicing Agreement and
any proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration
of transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended from time to time by the Depositor, the Servicer, the Special
Servicer, the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer, the Trustee, and the Fiscal Agent with the consent of the
Holders of the Regular Certificates evidencing not less than 66 2/3% of the
Percentage Interests of each Class of Certificates affected by the amendment for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Pooling and Servicing Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage
Loans which are required to be distributed
on any Certificate without the consent of
each affected Certificateholder;
(ii) change the percentages of Voting Rights of
Holders of Certificates which are required
to consent to any action or inaction under
the Pooling and Servicing Agreement, without
the consent of the Holders of all
Certificates then outstanding;
(iii) alter the servicing standard set forth in
the Pooling and Servicing Agreement or the
obligations the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance without the consent of
the Holders of all Certificates representing
all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and
Servicing Agreement, without the consent of
the holders of all Certificates representing
all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, at any time and from time to time, without
the consent of the Certificateholders, may amend the Pooling and Servicing
Agreement or the Custodial Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust REMIC as two separate REMICs, or to prevent the imposition of any
additional material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than
a 50% Percentage Interest in such may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
(defined as any date as of which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 1.0% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date) specifying the Anticipated
Termination Date, by purchasing on such date all, but not less than all, of the
Mortgage Loans then included in the Trust Fund, and all property acquired in
respect of any Mortgage Loan, at a purchase price, payable in cash, equal to not
less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the
last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
month preceding such Distribution Date;
(D) the aggregate amount of unreimbursed
Advances and unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage
Loans, and all other property acquired in respect of
any Mortgage Loan in the Trust Fund, on the last day
of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination
as provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement
shall terminate upon the earliest to occur of (i) the repurchase of the Mortgage
Loans by the Depositor, the Servicer or the Holder of the Class LR Certificates
as described above; or (ii) the later of (a) the receipt or collection of the
last payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate
has been executed by the Trustee or on its behalf by the Authenticating Agent,
by manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R
Certificate to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee
By: _______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class R Certificates referred to in the
Pooling and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _______________________________
Authorized Officer
<PAGE>
EXHIBIT A-19
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO
PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE TRUST REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO
RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND IN
ACCORDANCE WITH ANY OTHER
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A "GLOBAL
CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A
PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE
SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF
SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF
THE TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-D3, CLASS LR
CUSIP: 045424CT3 ISIN: US045424CT32
Percentage Interest: 100%
No.: LR-___
This certifies that ____________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class LR Certificateholder is not entitled to interest or principal
distributions. The Class LR Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Lower-Tier REMIC, if any, on the Final
Scheduled Distribution Date for the Certificates, after distributions in respect
of any accrued but unpaid interest on the Certificates and after distributions
in reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Lower-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by commercial and multifamily properties. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1, Class A-1D, Class A-CS2, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-4H, Class V-1, Class
V-2 and Class R Certificates (together with the Class LR Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of October 1, 1996 (the
"Pooling and Servicing Agreement"), by and among Asset Securitization
Corporation, as Depositor, AMRESCO Management, Inc., as Servicer, CRIIMI MAE
Services Limited Partnership, as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, capitalized terms used herein shall have the meanings assigned thereto
in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Internal Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the tenth day of the month in which the related Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the Distribution Date occurring in November 1996,
the Record Date will be the Closing Date, except as specified in the Pooling and
Servicing Agreement. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date by check mailed by first class mail to the address set forth
therefor in the Certificate Register or, provided that such Certificateholder
holds Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Certificateholder
at a bank or other entity located in the United States and having appropriate
facilities therefor. The final distribution on each Certificate shall be made in
like manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the Termination Date because of failure
of Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class LR
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's and the Trustee's
rights under the insurance policies with respect to the Mortgage Loans required
to be maintained pursuant to the Pooling and Servicing Agreement and any
proceeds thereof; (vi) any Assignments of Leases, Rents and Profits and any
security agreements; (vii) any indemnities or guaranties, Escrow Accounts or
other collateral given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, the Escrow
Accounts and the Reserve Accounts (to the extent such assets in such accounts
are not assets of the respective Borrowers), the Upper-Tier Distribution
Account, the Interest Reserve Account, the Default Interest Distribution Account
and the Excess Interest Distribution Account, including reinvestment income;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements in Article V of the Pooling and Servicing Agreement. Upon surrender
for registration of transfer of this Certificate, subject to the requirements of
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar, any Paying Agent and any agent of any
of them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in Section 5.02 of the Pooling and Servicing Agreement other than for
transfers to Institutional Accredited Investors as provided in Section 5.02(h)
of that Agreement. In connection with any transfer to an Institutional
Accredited Investor, the transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions in either of such agreements that may be inconsistent with other
provisions in such agreements, (iii) to amend any provision of the Pooling and
Servicing Agreement to the extent necessary or desirable to maintain the rating
or ratings assigned to each of the Classes of Regular Certificates by each
Rating Agency, or (iv) to amend or supplement any provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement, which
shall not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced by an opinion of counsel
or a confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, downgrade or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. Notwithstanding any contrary provision of the Pooling and
Servicing Agreement, no amendment shall be made to the Pooling and Servicing
Agreement or any Custodial Agreement unless, if requested by the Servicer, the
Special Servicer and/or the Trustee, the Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in the Pooling and Servicing Agreement, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosed property).
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee, and the Fiscal Agent with the consent of the Holders of the Regular
Certificates evidencing not less than 66 2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the rights
of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of each
affected Certificateholder;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates then
outstanding;
(iii) alter the servicing standard set forth in the Pooling and
Servicing Agreement or the obligations the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a
P&I Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend Section 10.07 of the Pooling and Servicing Agreement,
without the consent of the holders of all Certificates
representing all the Percentage Interests of the class or
classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the
Trustee, and the Fiscal Agent, at any time and from time to time, without the
consent of the Certificateholders, may amend the Pooling and Servicing Agreement
or the Custodial Agreement to modify, eliminate or add to any of its provisions
to such extent as shall be necessary to maintain the qualification of the Trust
REMIC as two separate REMICs, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
Any Holder of Class LR Certificates representing greater than a 50%
Percentage Interest in such may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee and
Servicer any time on or after the Early Termination Notice Date (defined as any
date as of which the aggregate Stated Principal Balance of the Mortgage Loans is
less than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to not less than the greater
of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Servicer as of
the date not more than 30 days prior to the last day of
the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance
of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related
Mortgaged Property has been acquired) at the Mortgage
Rate (plus the Excess Rate, to the extent applicable)
to the last day of the month preceding such
Distribution Date;
(D) the aggregate amount of unreimbursed Advances and
unpaid Trust Fund expenses; or
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of a date not more
than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as
provided above if it first notifies each Holder of a Class LR Certificate
through the Trustee of its intention to do so in writing at least 30 days prior
to the Early Termination Notice Date and no Class LR Holder terminates the Trust
Fund as described above within such 30 day period. All costs and expenses
incurred by any and all parties to the Pooling and Servicing Agreement or by the
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement
shall be borne by the party exercising its purchase rights thereunder. The
Trustee shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and Servicing
Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last surviving descendant(s) of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate
to be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class LR Certificates referred to in the Pooling
and Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: _______________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ------------------------------------------------
- - --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class
LR Certificate of the entire Percentage Interest represented by the within Class
LR Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Date: ___________
--------------------------------------------
Signature by or on behalf of Assignor(s)
--------------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------.
Distributions, if be made by wire transfer in immediately available funds to
- - -----------------------------------------------------------------------------for
the account of ---------------------------------------------------------------
account number ------------------------------------------------.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By: ________________________________________
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT B
<TABLE>
<CAPTION>
MORTGAGE LOAN SCHEDULE
<S> <C> <C> <C> <C> <C> <C>
Loan # Asset # Property Name Address City State Zip
- - ---------------------------------------------------------------------------------------------------------------
1 Hyatt Riverwalk-San Antonio 123 Lasoya St. San Antonio TX 78205
Pacific Properties
2 1 Montego Bay 1050 Whitney Ranch Drive Henderson NV 89014
2 2 Antigua Bay 5225 East Charleston Las Vegas NV 89122
2 3 Martinique Bay 3000 Highview Drive Henderson NV 89014
2 4 Club Pacific at Flamingo 3145 East Flamingo Road Las Vegas NV 89121
2 5 Club Pacific at Shores 2200 Club Pacific Way Las Vegas NV 89128
2 6 Club Pacific at Lakes 9325 West Desert Inn Las Vegas NV 89128
Road
3 *Mariner's Village 4600 Via Marina Marina del Rey CA 90292
4 Anchorage Shopping Center 2800 Leavenworth Street San Francisco CA 94133
5 Malibu Canyon Office Park 26565-26711 Agoura Road Calabasas CA 91302
6 *Lee Park 1100 East Hector Street Conshohocken PA 19428
7 Atlanta Decorative Art Center 351 Peachtree Hills Atlanta GA 30305
8 Lake Arrowhead Village 28200 Highway 189 Lake Arrowhead CA 92352
9 1010 Northern Boulevard 1010 Northern Boulevard Great Neck NY 11020
Slavik Suites
10 1 Comfort Inn - Mystic 48 Whitehall Ave. Mystic CT 06355
10 2 Residence Inn - Norman 2681 Jefferson Street Norman OK 73072
10 3 Comfort Inn - Southington 120 Laning Street Southington CT 06489
10 4 Holiday Inn - Cromwell 4 Sebethe Drive Cromwell CT 06416
10 5 Ramada Inn - Pensacola 6550 Pensacola Blvd. Pensacola FL 32505
10 6 Ramada Plaza - Fon du Lac One Main Street Fon du Lac WI 54935
Pinnacle Retail
Portfolio
11 1 Carter Creek 4001 East 29th Street Bryan TX 77802
11 2 Lakegrove 10121 Lake June Road Dallas TX 75217
11 3 University Hills 101 North Judge Ely Abilene TX 79601
Blvd.
11 4 Triple Creek 110 Triple Creek Drive Longview TX 75601
11 5 Plaza U.S. Highway 181 Floresville TX 78114
11 6 Edgewood 1200 North Mockingbird Abilene TX 79603
St.
11 7 Limestone Square 511 East Yeagua Street Groesbeck TX 76642
11 8 *Brookhaven 1500 11th Street Huntsville TX 77340
12 Steinhardt Sacramento Office 501 J Street Sacramento CA 95814
13 Simi Valley Plaza 1317 E. Los Angeles Simi Valley CA 93036
Ambassador Apartments
14 1 Westway Village 2401 West Belt North Houston TX 77043
14 2 Coral Cove 25 North Belcher Road Clearwater FL 34625
14 3 Summit Creek 7900 San Felipe Austin TX 78729
Boulevard
14 4 Tatum Gardens 15425 North Tatum Phoenix AZ 85032
Boulevard
15 Days Inn - Merchandise Mart 300 Spring Street Atlanta GA 30308
16 Village Squire Apartments 5955 Edinburgh Street Canton MI 48187
17 RCA-Addison 4010 Brookhaven Club Addison TX 75244
Drive
18 Camelot Care Center 11301 & 11311 N. 99th Peoria AZ 85345
Ave.
19 Hampton Inn - Key West 2801 North Roosevelt Key West FL 33040
Blvd.
Wingray
20 1 Hawaiian Gardens 104 63rd Avenue West Bradenton FL 34207
20 2 Spanish Main RV & MHP 12101 Hwy 301 North Thonotosassa FL 33592
20 3 Ellenton Gardens 7310 Hwy 301 North Ellenton FL 34222
20 4 Millcreek RV Resorts 2775 Michigan Avenue Kissimmee FL 64744
21 Holiday Inn -- Wilmington 4902 Market Street Wilmington NC 28405
22 Ridgewood Village Apartments 100 Ridgegate Lane St. Peters MO 63376
Charles Company I
23 1 Western 1075 Western Ave. Los Angeles CA 90038
23 2 Martin Luther King 1030 M.L. King Blvd. Los Angeles CA 90037
Charles Company II
24 1 Van Ness 5800-5944 Santa Monica Los Angeles CA 90038
Blvd.
24 2 Hoover 1065 Hoover Street Los Angeles CA 90006
24 3 Adams 285 Adams Blvd. Los Angeles CA 90011
25 Towne Pointe 357 Route 9 South Manalapan NJ 07725
26 Crosspointe 1395-1525 N.W. 167th Miami FL 33169
Street
27 Gramercy Apts 9072 Gramercy Apartments San Diego CA 92123
28 First Tennessee Bank Building 165 Madison Ave. Memphis TN 38103
Beltway II
29 1 Hechinger's Plaza 1535 University Blvd. Langley Park MD 20783
29 2 Blockbuster/Staples 8904 62nd Avenue College Park MD 20740
Owensboro Hotels
30 1 Holiday Inn - Owensboro 3136 W. 2nd Street Owensboro KY 42301
30 2 Days Inn - Owensboro 3720 New Hartford Road Owensboro KY 42301
31 Regency Towers 1600 Lehigh Parkway East Allentown PA 18103
32 Alderwood Village 37th Ave.W.&196th St.SW Lynwood WA 98036
33 Paradise Valley 13637 N. Tatum Boulevard Phoenix AZ 85032
Riva Office/Hotel
34 1 Days Inn - Annapolis 2520 Riva Road Annapolis MD 21401
34 2 Nations Bank Building 2530 Riva Road Annapolis MD 21401
35 Val Vista Crossing 3655 E. Southern Mesa AZ 85206
36 Charleston Park 4800 East Charleston Las Vegas NV 89104
37 Best Western - Lafayette 1801 West Pinhook Road Lafayette LA 70508
38 *Bolsa Marketplace 9500-9600 Bolsa Avenue Westinster CA 92683
39 Pecan Crossing 1225 E. Pleasant Run Desota TX 75115
40 Hotel Grand Victorian 2325 West Highway 76 Branson MO 65616
41 Barcelona Court 5215 South Loop 289 Lubbock TX 79424
42 *Best Western/Sunrise 400 N. Harbor Drive Redondo CA 90277
Beach
43 Crestview Plaza 9282 Watson Rd. Crestwood MO 63126
44 Monroe Gardens 1504-58 Schley Street Hillside NJ 07205
45 D Marysville Estate 506 N. Main St. Marysville OH 43040
46 *9300 Wilshire Blvd. 9300 Wilshire Blvd. Beverly Hills CA 90212
47 A Cypress Grove Apartments 22A Cypress Grove Drive Wilmington NC 28401
48 Best Western - Galveston 5914 Seawall Blvd. Galveston TX 77551
49 Comfort Inn - Goodyear 1770 N. Dysart road Goodyear AZ 85338
50 Santa Rita Care Center 150 N. La Canada Drive Green Valley AZ 85614
51 Fox Glen Apartments 6260 Fox Glen Drive Saginaw MI 48603
52 Hampton Inn - Memphis 2979 Millbranch Road Memphis TN 38116
53 Hampton Inn - Indianapolis 7220 Woodland Drive Indianapolis IN 46278
54 Holiday Inn - Monroe 2011 Louisville Avenue Monroe LA 71201
55 Ramada Inn Williamsburg 351 York Street Williamsburg VA 23185
56 M&M Mobile Villa 320 E. McKellips Road Mesa AZ 85201
57 Best Western-Dorsey 6755 Dorsey Road Dorsey MD 21227
58 C Franklin Estates 700 W. Meade Blvd Franklin TN 37064
59 Comfort Inn - Salisbury 2701 N. Salisbury Blvd. Salisbury MD 21801
60 122-124 Duane Street 122-124 Duane Street New York NY 10007
61 East Street Trading Center 801 East Street Fredrick MD 21701
62 Westwood Plaza 2228 Westwood Blvd Westwood CA 90064
63 Market at Uvalde 13502-13560 I-10 Houston TX 77015
Frontage Rd.
64 Brookwood MHP 1908 East 19th Street Lawrence KS 66046
65 Holiday Inn-Denton 1500 Dallas Drive Denton TX 76205
66 D Woodridge Estates 2284 W. Gelena Ave. Freeport IL 61032
67 Torrance Plaza Hotel 20801 S. Western Avenue Torrance CA 90501
68 Foothill Courtyard Apartments 1360 Foothill Drive Vista CA 92084
69 Leaden Hall II Med Centre 7271 Wurbach Road San Antonio TX 78240
70 Medford Nursing Home 616 South Front Street Medford OK 73759
71 I. Goldberg Shopping Center 1615 N. Kings Highway Cherry Hill NJ 08034
Chateau Oaks
72 1 Chateau Forrest 604 N. Kingsway Dr. Seffner FL 33584
72 2 Plantation Oaks 700 N. Kingsway Dr. Seffner FL 33584
73 Maple Park Terrace Apartments 5414 Maple Park Drive Flint MI 48507
74 Best Western - Goodyear 1100 N. Litchfield Road Goodyear AZ 85338
75 Best Western (Morristown Inn) 270 South Street Morristown NJ 07960
76 Holiday Inn - Salt Lake 2080 West North Temple Salt Lake City UT 84116
Drive
77 Days Inn-San Jose 2460 Fontaine Road San Jose CA 95121
78 Casas Adobes 7000-7051 North Oracle Tuscon AZ 85704
Rd
79 Ramada Limited-Denver North 110 West 104th Street Northglen CO 80234
80 Holiday Inn Express - 5479 Westmoreland Plaza Douglasville GA 30134
Douglasville
81 Branch Avenue Plaza 650 Branch Avenue Providence RI 02903
82 C Gwinnett Estates 211 Howe Lane Loganville GA 30249
83 Ravines MHP 2088 East Empire Avenue Benton Harbor MI 49022
84 Best Western McMinnville 2035 S. Highway 99 West McMinnville OR 97218
85 Crystal Lake MHP 1330 Hanover Road Delaware OH 43015
86 Park Hallow Apartments 4343 South Shaver Pasadena TX 77504
87 A Stratford Arms Apartments 1900 South Charles Blvd. Greenville NC 27858
88 Best Western-Monterey 420 North Atlantic Blvd. Monterey Park CA 91754
89 Country Hearth Inn - Auburn 1115 West 7th Street Auburn IN 46706
90 Johanna Woods 2909 Montpelier Street Broken Arrow OK 74014
91 C Tara - MHP 7735 Tara Blvd. Jonesboro GA 30236
92 B Royal Palm MHP 720 S. Federal Highway Hallandale FL 33009
93 Country Hearth Inn - Findlay 1020 Interstate Court Findlay OH 45840
94 F Ridgewood MHP 6825 W. Mississippi Lakewood CO 80226
95 Coachland MHP 10500 Hwy. 89N Truckee CA 96161
96 A Cardinal Village Apartments 2301 Indian Drive Jacksonville FL 28546
97 E Comfort Inn - North Carolina 1636 Carolina Avenue Washington NC 27889
98 Grandmont Gardens 16151 Grandmont Court Roseville MI 48066
99 B Galway Bay 1361 Overseas Hwy. Marathon FL 33050
100 E Quality Inn Roanoke 501 Orange Avenue Roanoke VA 24016
101 Red Carpet Apartments 24440 Russell Road Kent WA 98032
102 G Silver Sands RV Resort 9252 East Broadway Mesa AZ 85208
103 G Locust Grove MHP 778 Highway 36 Hazlet NJ 07730
104 Georgian Heights Apartments 1931 N. Bowman Ave. Danville IL 61832
105 Country Club Corners 7120 South Polk Street Dallas TX 75232
106 Grogan's Mills 303 Sawdust Rd. The TX 77380
Woodlands
107 Mobile Gardens MHP 1901 N. Glasscock Road Mission TX 78572
108 Cactus Wren MHP 235 North Ellsworth Road Mesa AZ 85207
109 Solana Y. Sombra 4828 East Grant Road Tucson AZ 85012
110 F Mobile Estates 1717 & 1823 5th St. Greeley CO 80631
111 Phoenix West MHP 3150 West Glendale Phoenix AZ 85021
Avenue
112 Havre de Grace Super 8 929 Pulaski Highway Havre de Grace MD 21078
113 Farmville Super 8 Highway 15 South Farmville VA 61755
Total / Wtd. Avg.:
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Loan # Asset # Originator Cut-Off Date Annual Debt Monthly Debt
Principal Loan Service Service
Balance
- - ---------------------------------------------------------------------------------------------
1 NACC $70,939,362 $7,302,253 $608,521
2 1 17,319,832
2 2 12,184,923
2 3 12,006,255
2 4 11,602,581
2 5 8,204,009
2 6 7,141,117
NACC $68,458,716 $6,335,039 $527,920
3 NACC 54,709,251 5,801,587 483,466
4 NACC 28,250,000 2,664,969 222,081
5 NACC 25,000,000 2,383,709 198,642
6 NACC 24,365,401 2,533,802 211,150
7 NACC 23,040,712 2,537,720 211,477
8 NACC 19,789,627 1,946,074 162,173
9 NACC 19,500,000 1,925,061 160,422
10 1 6,775,303
10 2 4,038,667
10 3 2,490,619
10 4 2,027,833
10 5 1,446,842
10 6 182,191
NACC $16,961,456 $1,911,579 $159,298
11 1 5,387,556
11 2 2,872,963
11 3 2,498,950
11 4 1,983,780
11 5 1,360,315
11 6 1,152,953
11 7 814,585
11 8 643,898
NACC $16,715,000 $1,752,461 $146,038
12 NACC 16,527,580 1,721,220 143,435
13 NACC 16,357,401 1,579,268 131,606
14 1 4,932,548
14 2 4,035,721
14 3 3,587,307
14 4 3,487,660
NACC $16,043,236 $1,401,773 $116,814
15 Bloomfield 16,850,000 1,833,118 152,760
16 NACC 14,930,537 1,342,170 111,847
17 NACC 13,490,989 1,261,895 105,158
18 NACC 11,967,095 1,373,013 114,418
19 NACC 8,665,399 963,074 80,256
20 1 3,883,335
20 2 1,817,202
20 3 1,095,300
20 4 1,045,513
Bloomfield $7,841,350 $816,373 $68,031
21 NACC 7,280,643 844,199 70,350
22 NACC 7,108,874 669,059 55,755
23 1 4,070,000
23 2 1,065,000
NACC $5,135,000 $523,033 $43,586
24 1 5,940,000
24 2 1,790,000
24 3 940,000
NACC $8,670,000 $883,096 $73,591
25 NACC 6,546,799 662,633 55,219
26 NACC 6,494,134 650,838 54,237
27 NACC 5,875,000 547,590 45,632
28 NACC 5,853,895 612,497 51,041
29 1 2,902,319
29 2 2,842,477
NACC $5,744,796 $552,181 $46,015
30 1 3,958,439
30 2 1,517,641
NACC $5,476,080 $616,672 $51,389
31 NACC 5,591,168 551,378 45,948
32 NACC 5,585,493 575,025 47,919
33 NACC 5,388,601 531,686 44,307
34 1 3,376,840
34 2 1,910,384
NACC $5,287,224 $563,205 $46,934
35 NACC 5,242,812 510,693 42,558
36 NACC 5,209,635 501,942 41,828
37 NACC 4,956,197 553,415 46,118
38 NACC 4,868,179 504,325 42,027
39 NACC 4,847,134 452,467 37,706
40 NACC 4,777,119 574,854 47,905
41 NACC 4,686,890 533,727 44,477
42 NACC 4,393,851 493,545 41,129
43 NACC 4,363,076 466,578 38,882
44 Hanover 4,274,524 432,471 36,039
45 D Bloomfield 4,228,510 414,577 34,548
46 NACC 4,107,649 455,532 37,961
47 A Remsen 4,092,036 401,052 33,421
48 NACC 4,045,482 465,235 38,770
49 NACC 3,859,630 429,536 35,795
50 NACC 3,813,383 418,065 34,839
51 NBD 3,793,878 393,422 32,785
52 NACC 3,786,623 430,547 35,879
53 NACC 3,721,857 407,775 33,981
54 NACC 3,710,781 441,183 36,765
55 NACC 3,621,088 429,940 35,828
56 Bloomfield 3,512,919 364,002 30,334
57 NACC 3,447,496 382,642 31,887
58 C Bloomfield 3,260,879 339,235 28,270
59 First 3,135,456 343,489 28,624
60 NACC 3,041,009 325,559 27,130
61 NACC 2,935,879 311,049 25,921
62 NACC 2,806,675 323,660 26,972
63 NACC 2,744,750 282,310 23,526
64 Bloomfield 2,742,933 281,980 23,498
65 NACC 2,699,491 315,382 26,282
66 D Bloomfield 2,697,136 264,436 22,036
67 NACC 2,638,347 300,023 25,002
68 NACC 2,631,488 248,792 20,733
69 NACC 2,595,943 279,565 23,297
70 NACC 2,544,390 282,605 23,550
71 NACC 2,540,950 258,893 21,574
72 1 1,309,223
72 2 1,189,294
Bloomfield $2,498,516 $232,803 $19,400
73 NBD 2,495,973 258,830 21,569
74 Continental 2,475,763 285,543 23,795
75 NACC 2,306,795 261,925 21,827
76 Continental 2,287,558 250,801 20,900
77 NACC 2,273,351 252,515 21,043
78 NACC 2,161,661 234,069 19,506
79 NACC 2,097,136 238,695 19,891
80 NACC 2,071,925 244,186 20,349
81 NACC 2,071,701 221,196 18,433
82 C Bloomfield 2,022,104 210,363 17,530
83 Bloomfield 1,964,883 193,428 16,119
84 Continental 1,925,058 227,349 18,946
85 NBD 1,915,126 182,321 15,193
86 NACC 1,861,647 178,606 14,884
87 A Remsen 1,860,457 185,351 15,446
88 NACC 1,816,523 206,899 17,242
89 Continental 1,804,678 220,826 18,402
90 NACC 1,797,015 188,118 15,677
91 C Bloomfield 1,775,194 188,363 15,697
92 B Bloomfield 1,715,640 174,139 14,512
93 Continental 1,706,912 208,863 17,405
94 F Bloomfield 1,699,102 166,497 13,875
95 Bloomfield 1,690,881 172,595 14,383
96 A Remsen 1,667,550 166,132 13,844
97 E NACC 1,657,038 186,591 15,549
98 NBD 1,617,452 157,488 13,124
99 B Bloomfield 1,543,086 157,238 13,103
100 E Bloomfield 1,498,132 178,863 14,905
101 NACC 1,399,219 133,970 11,164
102 G Bloomfield 1,352,928 147,068 12,256
103 G Bloomfield 1,292,614 128,254 10,688
104 NACC 1,287,277 122,921 10,243
105 NACC 1,093,650 122,009 10,167
106 NACC 1,089,147 116,836 9,736
107 Bloomfield 1,047,443 111,051 9,254
108 Bloomfield 994,950 97,807 8,151
109 Bloomfield 982,656 99,901 8,325
110 F Bloomfield 859,272 88,806 7,401
111 NACC 848,552 87,703 7,309
112 NACC 693,863 79,233 6,603
113 NACC 549,669 61,487 5,124
Total: $782,586,994
</TABLE>
Loan # Asset # Mortgage Rate Stated Maturity Anticipated Repayment
Date Date
- - -------------------------------------------------------------------------
1 9.260% 9/11/21 9/11/11
2 1
2 2
2 3
2 4
2 5
2 6
8.525% 10/11/26 10/11/03
3 8.710% 3/11/13 3/11/13
4 8.520% 4/11/24 4/11/09
5 8.860% 10/11/26 10/11/11
6 9.380% 8/11/21 8/11/06
7 9.750% 1/11/19 7/11/06
8 9.200% 9/11/26 9/11/11
9 9.250% 10/11/26 10/11/06
10 1
10 2
10 3
10 4
10 5
10 6
10.400% 6/11/21 6/11/11
11 1
11 2
11 3
11 4
11 5
11 6
11 7
11 8
9.500% 10/11/21 10/11/06
12 9.380% 6/11/21 6/11/03
13 8.980% 6/11/26 6/11/06
14 1
14 2
14 3
14 4
7.882% 4/11/26 4/11/03
15 9.970% 10/11/21 10/11/11
16 8.170% 3/11/26 3/11/06
17 8.617% 4/11/26 4/11/06
18 10.630% 6/11/11
19 10.210% 5/11/21 5/11/11
20 1
20 2
20 3
20 4
9.357% 5/11/11
21 9.980% 8/11/16 8/11/06
22 8.710% 9/11/26 9/11/06
23 1
23 2
9.140% 10/11/21 10/11/06
24 1
24 2
24 3
9.140% 10/11/21 10/11/06
25 9.530% 9/11/26 9/11/06
26 8.930% 9/11/21 9/11/03
27 8.610% 10/11/26 10/11/06
28 9.885% 3/11/26 3/11/11
29 1
29 2
8.920% 4/11/26 4/11/06
30 1
30 2
9.455% 4/11/16 4/11/11
31 9.220% 7/11/26 7/11/06
32 9.240% 7/11/21 7/11/06
33 9.220% 6/11/26 6/11/06
34 1
34 2
9.670% 7/11/21 7/11/06
35 9.080% 6/11/26 6/11/06
36 8.970% 9/11/26 9/11/06
37 9.350% 4/11/16
38 9.790% 7/11/26 7/11/11
39 8.620% 9/11/26 9/11/06
40 10.510% 7/11/16 7/11/11
41 10.530% 6/11/21 6/11/11
42 9.540% 9/11/16 9/11/11
43 9.730% 8/11/21 8/11/06
44 8.990% 4/11/21 4/11/16
45 D 9.160% 8/11/06
46 10.170% 5/11/21 5/11/11
47 A 8.600% 4/11/03
48 9.840% 7/11/16 7/11/11
49 9.280% 3/11/16
50 10.030% 6/11/21 6/11/06
51 8.420% 9/11/16
52 10.500% 5/11/21 5/11/06
53 9.100% 5/11/16 5/11/11
54 10.330% 7/11/16 7/11/11
55 10.310% 7/11/16 7/11/11
56 9.310% 6/11/16
57 10.220% 9/11/21 9/11/11
58 C 9.360% 6/11/11
59 10.000% 4/11/21 1/11/16
60 8.750% 4/11/16 4/11/06
61 9.580% 6/11/21 5/11/06
62 9.860% 6/11/16 6/11/06
63 9.700% 6/11/26 6/11/06
64 9.200% 5/11/06
65 10.110% 9/11/16 9/11/11
66 D 9.160% 8/11/06
67 10.530% 8/11/21 8/11/11
68 8.760% 9/11/26 9/11/06
69 9.820% 8/11/21 8/11/11
70 10.210% 7/11/06
71 9.100% 6/11/21 6/11/03
72 1
72 2
8.600% 9/11/26 9/11/03
73 8.420% 9/11/16
74 9.800% 3/11/16 3/11/06
75 10.510% 8/11/21 8/11/11
76 10.000% 3/11/21 3/11/06
77 10.230% 9/11/21 9/11/11
78 9.890% 8/11/21 8/11/06
79 9.730% 9/11/16 9/11/11
80 10.200% 7/11/16 7/11/08
81 9.710% 8/11/21 8/11/06
82 C 9.360% 6/11/11
83 9.200% 7/11/06
84 10.250% 8/11/16 8/11/11
85 8.250% 4/11/03
86 8.330% 3/11/06
87 A 8.800% 4/11/03
88 9.740% 9/11/16 9/11/06
89 10.780% 8/11/16 8/11/06
90 9.460% 8/11/06
91 C 9.610% 6/11/11
92 B 9.030% 4/11/21
93 10.780% 8/11/16 8/11/06
94 F 9.160% 9/11/06
95 9.100% 4/11/06
96 A 8.800% 4/11/03
97 E 9.450% 3/11/16
98 8.580% 9/11/06
99 B 9.090% 5/11/21
100 E 10.430% 9/11/16 9/11/11
101 8.900% 9/11/26 9/11/06
102 G 9.940% 8/11/21 8/11/11
103 G 8.750% 4/11/06
104 8.870% 9/11/26 9/11/06
105 9.380% 6/11/16 6/11/06
106 9.780% 9/11/21 9/11/06
107 9.610% 7/11/06
108 9.190% 8/11/06
109 9.050% 4/11/16
110 F 9.310% 9/11/06
111 9.300% 8/11/06
112 9.670% 4/11/16 4/11/11
113 9.820% 4/11/18 4/11/11
------
9.220%
Mortgage Loans that are Actual/360 Loans are indicated with an asterisk in the
column headed "Mortgage Rate".
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
__________________, being first duly sworn, deposes and says:
1. That he/she is a ______________ of ____________
______________________ (the "Purchaser"), a ___________ duly organized and
existing under the laws of the State of ________, on behalf of which he makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ___________.
3. That the Purchaser of the Asset Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1996-D3, Class [R] [LR]
(the "Class [R] [LR] Certificate") is a Permitted Transferee (as defined in
Article I of the Pooling and Servicing Agreement dated as of October 1, 1996, by
and among Asset Securitization Corporation, as depositor, AMRESCO Management,
Inc., as servicer, and CRIIMI MAE Services Limited Partnership, as special
servicer, LaSalle National Bank, as trustee, and ABN AMRO Bank N.V., as fiscal
agent (the "Pooling and Servicing Agreement")), or is acquiring the Class [R]
[LR] Certificate for the account of, or as agent (including as a broker,
nominee, or other middleman) for, a Permitted Transferee and has received from
such person or entity an affidavit substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR] Certificate
to any person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit or as to which the Purchaser has
actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or
paragraph 7 hereof are not satisfied or that the Purchaser has reason to know
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper Tier REMIC][Lower Tier REMIC], the Purchaser agrees to act
as "tax matters person" and to perform the functions of "tax matters partner" of
the [Upper Tier REMIC][Lower Tier REMIC] pursuant to Section 4.04 of the Pooling
and Servicing Agreement, and agrees to the irrevocable designation of the
Trustee as the Purchaser's agent in performing the function of "tax matters
person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the provisions
of Section 5.02 of the Pooling and Servicing Agreement concerning registration
of the transfer and exchange of the Class [R] [LR] Certificate. The Purchaser
understands that such provisions provide, among other things, that thirty (30)
days after the Residual Trigger Date, any Ownership Interest owned by an
Institutional Accredited Investor on such date shall mandatorily be redeemed and
simultaneously reissued to Nomura Securities International, Inc. unless such
Institutional Accredited Investor has previously provided the Trustee and the
Certificate Registrar a Residual Transfer Opinion.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its ______________ this _th day of _________________,
199_.
[Purchaser]
By:______________________
Title:
Name:
Personally appeared before me the above-named _______________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the _____________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Purchaser.
Subscribed and sworn before me this __th day of ___________________,
199_.
- - ------------------------------
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _________
My commission expires the __th day of ________________, 199_.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
[CERTIFICATE REGISTRAR]
Re: Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-D3
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and
has no actual knowledge that such affidavit is not true and has no reason to
know that the information contained in paragraph 4 thereof is not true.
Very truly yours,
[Transferor]
--------------------------
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Suite 200
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Asset Securitization Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Perry Gershon
Sheryl McAfee
Re: Transfer of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3, Class
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of October 1, 1996 (the "Pooling and Servicing
Agreement"), by and among Asset Securitization Corporation, as depositor,
AMRESCO Management, Inc., as servicer, and CRIIMI MAE Services Limited
Partnership, as special servicer, LaSalle National Bank, as trustee (the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), on
behalf of the holders of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3 (the "Certificates") in connection
with the transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of [$_______________ aggregate Certificate Balance] [___%
Percentage Interest] of Class __ Certificates (such registered interest being
the "Certificate"). Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows [check one of the following]:
_
[_] [For Institutional Accredited Investors only] We are an
"institutional accredited investor" (an entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act of 1933, as amended (the "Securities
Act")) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of our investment in the Certificate, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment. We are acquiring the
Certificate purchased by us for our own account or for one or
more accounts (each of which is an "institutional accredited
investor") as to each of which we exercise sole investment
discretion. The Purchaser hereby undertakes to reimburse the
Trust for any costs incurred by it in connection with this
transfer.
_
[_] [For Qualified Institutional Buyers only] The Purchaser is a
"qualified institutional buyer" within the meaning of Rule 144A
("Rule 144A") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser is aware that the
transfer is being made in reliance on Rule 144A, and the
Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
_
[_] [For Affiliated Persons Only] The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of
such a person, as defined in Rule 405 of the Securities Act of
1933, as amended (the "Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, or (ii) to "institutional
accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the Securities Act, pursuant to any other
exemption from the registration requirements of the Securities Act, subject in
the case of this clause (ii) to (a) the receipt by the Certificate Registrar of
a letter substantially in the form hereof, (b) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the Securities
Act, (c) the receipt by the Certificate Registrar of such other evidence
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act and other applicable laws, and
(d) a written undertaking to reimburse the Trust for any costs incurred by it in
connection with the proposed transfer. It understands that the Certificate (and
any subsequent Individual Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
4. The Purchaser has reviewed the Private Placement Memorandum dated
October 1, 1996, relating to the Certificates (the "Private Placement
Memorandum") and the agreements and other materials referred to therein and has
had the opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by the Private Placement
Memorandum.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
an Individual Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate, except in compliance with Section 5.02 of the Pooling and
Servicing Agreement.
7. Check one of the following:*
_
[_] The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
_
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies
of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated IRS Forms W-8 or IRS
Forms 4224, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a Person other than a Non-U.S. Person, as
defined in the Pooling and Servicing Agreement.
- - -----------------------------
* Each Purchaser must include one of the two alternative certifications.
<PAGE>
Please make all payments due on the Certificates:**
_
[_] (a) by wire transfer to the following account at a bank
or entity in New York, New York, having appropriate
facilities therefor:
Account number _________ Institution __________________
_
[_] (b) by mailing a check or draft to the following address:
___________________________________
___________________________________
___________________________________
Very truly yours,
__________________________________
[The Purchaser]
By:_______________________________
Name:
Title
Dated: ____ __, ____
_________________________
** Only to be filled out by Purchasers of Individual Certificates. Please select
(a) or (b). For holders of Individual Certificates, wire transfers are only
available if such holder's Individual Certificates have an aggregate principal
face amount of at least U.S. $5,000,000.
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
________________ __, ____
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Suite 200
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Asset Securitization Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Perry Gershon
Sheryl McAfee
Re: Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3
Ladies and Gentlemen:
_____________________________ (the "Purchaser") intends to purchase
from __________________________ (the "Seller") $__________ initial Certificate
Balance or _____% Percentage Interest of Asset Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1996-D3, Class _______,
CUSIP No. 045424-________ (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
October 1, 1996, by and among Asset Securitization Corporation, as depositor
(the "Depositor"), AMRESCO Management, Inc., as servicer, and CRIIMI MAE
Services Limited Partnership, as special servicer, LaSalle National Bank, as
trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). All capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement. The Purchaser
hereby certifies, represents and warrants to, and covenants with, the Depositor,
the Certificate Registrar and the Trustee that:
1. The Purchaser is not (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Keogh
plan, which is subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), Section 4975 of the Code, or any essentially similar
Federal, State or local law (a "Similar Law") (each, a "Plan"), nor (b) a
collective investment fund in which such Plans are invested, an insurance
company using assets of separate accounts or general accounts which include
assets of Plans (or which are deemed pursuant to ERISA or any Similar Law to
include assets of Plans) or other Person acting on behalf of any such Plan or
using the assets of any such Plan, other than an insurance company using assets
of its general account under circumstances whereby such purchase and the
subsequent holding of such Certificate by such insurance company would not
constitute or result in a prohibited transaction within the meaning of Section
406 or 407 or ERISA, Section 4975 of the Code, or a materially similar
characterization under any Similar Law.; and
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the Class R or Class LR
Certificate, which may not be transferred unless the transferee represents it is
not such a Person, such Purchaser is required to provide to the Depositor, the
Trustee and the Certificate Registrar an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Trustee and the Certificate Registrar
that the purchase or holding of the Certificates will not result in the assets
of the Trust Fund being deemed to be "plan assets" and subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
the Code, will not constitute or result in a prohibited transaction within the
meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code, and
will not subject the Servicer, the Depositor, the Trustee or the Certificate
Registrar to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code), which Opinion of Counsel shall not be
at the expense of the Servicer, the Depositor, the Trustee or the Certificate
Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA
Representation Letter on __________ __, ____.
Very truly yours,
-----------------------------------------
By:______________________________________
Name:__________________________________
Title:___________________________________
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
Name of Mortgagor: _____________________
Servicer
Loan No.: _____________________
Custodian/Trustee
Name: _____________________
Address: _____________________
_____________________
Custodian/Trustee
Mortgage File No.: ______________________
Depositor
Name: ______________________
Address: ______________________
______________________
Certificates: Asset Securitization
Corporation, Commercial
Mortgage Pass-Through
Certificates, Series
1996-D3
The undersigned Servicer hereby acknowledges that it has received from
LaSalle National Bank, as Trustee for the Holders of Asset Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-D3, the
documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
dated as of October 1, 1996, by and among the Trustee, ABN AMRO Bank N.V., as
fiscal agent, Asset Securitization Corporation, as depositor, and AMRESCO
Management, Inc., as servicer, and CRIIMI MAE Services Limited Partnership, as
special servicer.
( ) Promissory Note dated , 199__, in the original principal sum of
$_______ , made by --------------- , payable to, or endorsed to the
order of, the Trustee.
( ) Mortgage recorded on ________ as instrument no.________ in the
County Recorder's Office of the County of ___________, State of
___________in book/reel/docket ______________ of official records at
page/image -------------.
( ) Deed of Trust recorded on ___________ as instrument no. __________ in
the County Recorder's Office of the County of _____________, State of
__________ in book/reel/docket _____________ of official records at
page/image _________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
___________ as instrument no. ___________ in the County Recorder's
Office of the County of _____________, State of _____________________
in book/reel/docket ____________ of official records at page/image
_______.
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( ) _____________________________
( ) _____________________________
( ) _____________________________
( ) _____________________________
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the Documents in
trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Servicer shall not cause or permit the Documents to become
subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights
of set-off to or against the Documents or any proceeds thereof.
(3) The Servicer shall return the Documents to the Custodian when the
need therefor no longer exists, unless the Mortgage Loan relating
to the Documents has been liquidated and the proceeds thereof
have been remitted to the Collection Account and except as
expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Servicer
shall at all times be earmarked for the account of the Trustee,
and the Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Servicer's
possession, custody or control.
AMRESCO MANAGEMENT, INC.
By:__________________________
Title:_______________________
Date: ____________, 19__
<PAGE>
EXHIBIT F
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT, dated as of [ ] by and among [NAME OF
CUSTODIAN], as Custodian (the "Custodian"), AMRESCO Management, Inc., as
servicer, and CRIIMI MAE Services Limited Partnership, as special servicer (the
"Servicer"), and LaSalle National Bank, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Servicer and the Trustee are parties to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 1996, among Asset Securitization Corporation, as Depositor, the Servicer, the
Trustee and ABN AMRO Bank N.V., as Fiscal Agent, relating to Asset
Securitization Corporation, Commmercial Mortgage Pass-Through Certificates,
Series 1996-D3 (capitalized terms used but not defined herein having the meaning
assigned thereto in the Pooling and Servicing Agreement);
WHEREAS, the parties hereto desire the Custodian to take possession of
the documents specified in Section 2.01 of the Pooling and Servicing Agreement,
as custodian for the Trustee, in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
1. The Trustee hereby certifies that it has caused to be delivered and
released to the Custodian and the Custodian hereby acknowledges receipt of the
documents specified in Section 2.01 of the Pooling and Servicing Agreement
pertaining to each of the Mortgage Loans identified in the Mortgage Loan
Schedule attached to the Pooling and Servicing Agreement as Exhibit B. From time
to time, the Servicer shall forward to the Custodian additional original
documents evidencing an assumption or modification of a Mortgage Loan approved
by the Servicer. All Mortgage Loan documents held by the Custodian as to each
Mortgage Loan are referred to herein as the "Custodian's Mortgage File." The
Custodian hereby agrees to review each of the Custodian's Mortgage Files and
perform such other obligations of the Custodian as such obligations are set
forth in the Pooling and Servicing Agreement (including Section 2.02 thereof).
2. With respect to each Note, each Mortgage, each Assignment of
Mortgage and each other document constituting each Custodian's Mortgage File
which is delivered to the Custodian or which at any time comes into the
possession of the Custodian, the Custodian is exclusively the custodian for and
the bailee of the Trustee or the Servicer. The Custodian shall hold all
documents constituting each Custodian's Mortgage File received by it for the
exclusive use and benefit of the Trustee, and shall make disposition thereof
only in accordance with the instructions furnished by the Servicer. The
Custodian shall segregate and maintain continuous custody of all documents
constituting the Custodian's Mortgage File received in secure and fire resistant
facilities located in the State of __________ in accordance with customary
standards for such custody. In the event the Custodian discovers any defect with
respect to any Custodian's Mortgage File, the Custodian shall give written
specification of such defect to the Servicer and the Trustee.
3. From time to time and as appropriate for the foreclosure or
servicing of any of the Mortgage Loans, the Custodian is hereby directed, upon
written request and receipt from the Servicer (a copy of which shall be
forwarded to the Trustee), to release to the Servicer the related Custodian's
Mortgage File or the documents set forth in such receipt to the Servicer. All
documents so released to the Servicer shall be held by it in trust for the
benefit of the Trustee. The Servicer shall return to the Custodian the
Custodian's Mortgage File or such documents when the Servicer's need therefor in
connection with such foreclosure or servicing no longer exists, unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a
certification to this effect from the Servicer to the Custodian, the Servicer's
receipt shall be released by the Custodian to the Servicer.
4. Upon the purchase of any Mortgage Loan pursuant to the terms of the
Pooling and Servicing Agreement or the payment in full of any Mortgage Loan, and
upon receipt by the Custodian of the Servicer's request for release, receipt and
certification (which certification shall include a statement to the effect that
all amounts received in connection with such payment or repurchase have been
credit to the Collection Account or Distribution Account as provided in the
Pooling and Servicing Agreement), the Custodian shall promptly release the
related Custodian's Mortgage File to the Servicer.
5. It is understood that the Custodian will charge such fees for its
services under this Agreement as are set forth in a separate agreement between
the Custodian and the Servicer, the payment of which, together with the
Custodian's expenses in connection therewith, shall be solely the obligation of
the Servicer.
6. The Trustee may upon 30 days written notice (with copy to the
Servicer) remove and discharge the Custodian or any successor Custodian
thereafter appointed from the performance of its duties under this Custodial
Agreement. Simultaneously, the Trustee shall appoint a successor Custodian to
act on its behalf by written instrument, one original counterpart of which
instrument shall be delivered to each Rating Agency, one copy to the Servicer
and one copy to the successor Custodian. In the event of any such removal, the
Custodian shall promptly transfer to the successor Custodian, as directed, all
Custodian's Mortgage Files being administered under this Custodial Agreement.
Notwithstanding the foregoing, so long as AMRESCO Management, Inc. is Servicer,
the Trustee shall not have a right to remove the Custodian.
7. Upon reasonable prior written notice to the Custodian, the Trustee
and its agents, accountants, attorneys and auditors will be permitted during
normal business hours to examine the Custodian's Mortgage Files, documents,
records and other papers in the possession of or under the control of the
Custodian relating to any or all of the Mortgage Loans.
8. If the Custodian is furnished with written notice from the Trustee
or the Servicer that the Pooling and Servicing Agreement has been terminated as
to any or all of the Mortgage Loans, it shall upon written request of the
Trustee or the Servicer release to such persons as the Trustee or the Servicer
shall designate the Custodian's Mortgage Files relating to such Mortgage Loans
as the Trustee or the Servicer shall request and shall complete the Assignments
of Mortgage and endorse the Notes only as, and if, the Trustee or the Servicer
shall request. The person making such written request shall send notice of such
request to all other parties to the Pooling and Servicing Agreement.
9. The Custodian shall, at its own expense, maintain at all times
during the existence of this Custodial Agreement and keep in full force and
effect (a) fidelity insurance, (b) theft of documents insurance, (c) forgery
insurance and (d) errors and omissions insurance. All such insurance shall be in
amounts, with standard coverage and subject to deductibles, as are customary for
insurance typically maintained by banks which act as custodian in similar
transactions provided, however, that so long as the Custodian is rated at least
"AA" no such insurance shall be required.
10. This Custodial Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
11. Within 10 days of each anniversary of the date of this Custodial
Agreement, or upon the request of the Trustee or the Servicer at any other time,
the Custodian shall provide to the Trustee and the Servicer a list of all the
Mortgage Loans for which the Custodian holds a Custodian's Mortgage File
pursuant to this Custodial Agreement. Such list may be in the form of a copy of
the Mortgage Loan Schedule with manual deletions to specifically denote any
Mortgage Loans paid off, liquidated or repurchased since the date of this
Custodial Agreement.
12. This Custodial Agreement shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
13. By execution of this Custodial Agreement, the Custodian warrants
that it currently does not hold and during the existence of this Custodial
Agreement shall not hold any adverse interest, by way of security or otherwise,
in any Mortgage Loan, and hereby waives and releases any such interest which it
may have in any Mortgage Loan as of the date hereof.
14. The Custodian may terminate its obligations under this Custodial
Agreement upon at least 60 days notice to the Trustee and the Servicer, provided
that so long as AMRESCO Management, Inc. is the Servicer, AMRESCO Management,
Inc. will not resign from its duties hereunder. In the event of such
termination, the Trustee shall appoint a successor Custodian. Upon such
appointment, the Custodian shall promptly transfer to the successor Custodian,
as directed, all Custodian's Mortgage Files being administered under this
Custodial Agreement.
15. This Custodial Agreement shall terminate upon the final payment or
other liquidation (or advance with respect thereto) of the last Mortgage Loan or
the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and the final remittance of all funds due the
Certificateholders under the Pooling and Servicing Agreement. In such event, all
documents remaining in the Custodian's Mortgage Files shall be forwarded to the
Trustee.
16. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
addressee. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
17. The Servicer shall indemnify, defend, and hold harmless the
Custodian for any actions taken by the Custodian at its written request.
<PAGE>
IN WITNESS WHEREOF, the Custodian, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the date first written above.
[NAME OF CUSTODIAN], as Custodian
By:________________________________________
Name:______________________________________
Title:_____________________________________
AMRESCO MANAGEMENT, INC. as Servicer
By:________________________________________
Name:______________________________________
Title:_____________________________________
LASALLE NATIONAL BANK, as Trustee
By:________________________________________
Name:______________________________________
Title:_____________________________________
<PAGE>
EXHIBIT G
FORM OF REGULATION S TRANSFER CERTIFICATE
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-D3, Class
[ ]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling
and Servicing Agreement dated as of October 1, 1996 (the "Pooling and Servicing
Agreement"), by and among Asset Securitization Corporation, as depositor,
AMRESCO Management, Inc., as servicer, and CRIIMI MAE Services Limited
Partnership, as special servicer, LaSalle National Bank, as trustee (the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent, on behalf of the holders of
the Asset Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, 1996-D3, Class [ ] (the "Certificates") in connection with the
transfer by the undersigned (the "Transferor") to ____________(the "Transferee")
of $_____________________Certificate Balance of Certificates, in fully
registered form (each, an "Individual Certificate"), or a beneficial interest of
such aggregate Certificate Balance in the Regulation S Global Certificate (the
"Global Certificate") maintained by The Depository Trust Company or its
successor as Depositary under the Pooling and Servicing Agreement (such
transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person in
the United States;
[(2) at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States;]*
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States;]*
_______________________
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, and the Servicer.
--------------------------------
Transferor
By:______________________________
Name:
Title:
Dated: _________ __, 199_
<PAGE>
EXHIBIT H
SECURITIES LEGEND
The Private Certificates will bear a legend (the "Securities Legend")
to the following effect, unless the Certificate Registrar determines otherwise
in accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE
OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT
AND OTHER APPLICABLE LAWS AND ONLY (A)(1) PURSUANT TO RULE 144A UNDER
THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN
EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (2) TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE 1933 ACT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
<PAGE>
EXHIBIT I
FORM OF MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "Agreement") dated
as of _________________, is between____________________, a _______________
corporation (the "Company"), and _______________________, a __________
corporation (the "Seller"). The Seller agrees to sell, and the Company agrees to
purchase, (i) the mortgage loans (the "Mortgage Loans") described in, and set
forth in, the Mortgage Loan Schedule attached as Exhibit B to the Pooling and
Servicing Agreement dated as of October 1, 1996 (the "Pooling and Servicing
Agreement"), among the Company, AMRESCO Management, Inc., as servicer (in such
capacity, the "Servicer"), CRIIMI MAE Services Limited Partnership, as special
servicer, LaSalle National Bank, as trustee (the "Trustee"), and ABN AMRO Bank
N.V., as fiscal agent, relating to the issuance of the Asset Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-D3 (the
"Certificates") and (ii) the participation interest of the seller, pursuant to
the participation agreement dated the Closing Date, between the Seller and the
Company (the "Anchorage Participation"), the in Mortgage Loan (the "Anchorage
Loan") secured by the property (the "Anchorage Property") identified as the
"Anchorage Shopping Center" on the Mortgage Loan Schedule. Capitalized terms
used without definition herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement or, if not defined therein, in the
Underwriting Agreement, dated October 16, 1996 (the "Underwriting Agreement"),
by and between the Company and Nomura Securities International, Inc. (in such
capacity, the "Underwriter") or in the Purchase Agreement, dated October 22,
1996 (the "Purchase Agreement"), by and between the Company and Nomura
Securities International, Inc. (in such capacity, the "Placement Agent").
1. Purchase Price; Purchase and Sale. The purchase price (the
"Purchase Price") for the Mortgage Loans and the Anchorage Participation shall
be an amount agreed upon by the parties in a separate writing, which amount
shall be payable by the Company to the Seller on the Closing Date (except as
provided below) in immediately available funds. The closing for the purchase and
sale of the Mortgage Loans and the Anchorage Participation shall take place at
the offices of Cadwalader, Wickersham & Taft, New York, New York, at 10:00 a.m.
New York time, on the Closing Date.
On the Closing Date, the Company shall pay the Purchase Price to the
Seller. As of the Closing Date, the Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Company all the right, title and interest
of the Seller in and to the Mortgage Loans and the Anchorage Participation,
including all interest and principal due on or with respect to the Mortgage
Loans and the Anchorage Participation after the Cut-off Date, together with all
of the Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance policies. In addition, as of
the Closing Date, the Seller hereby transfers, assigns, sets over and otherwise
conveys to the Company all the right, title and interest of the Seller in and to
the Originator's Mortgage Loan Purchase Agreements (as defined below) and each
of which is attached hereto, insofar as such rights relate to the Mortgage Loans
including, but not limited to, the obligations of the Originators (as defined
below) pursuant to the Originator's Mortgage Loan Purchase Agreements to
repurchase Mortgage Loans with respect to which there exists a breach of one or
more of the Originator's representations and warranties made in the applicable
Originator's Mortgage Loan Purchase Agreement. The Company hereby directs the
Seller, and the Seller hereby agrees, to deliver to the Trustee all documents,
instruments and agreements required to be delivered by the Company to the
Custodian on behalf of the Trustee under the Pooling and Servicing Agreement and
such other documents, instruments and agreements as the Company or the Trustee
shall reasonably request. "Originator's Mortgage Loan Purchase Agreements" mean
(i) the Mortgage Loan Purchase Agreement, dated as of May 16, 1994, by and
between the Seller and Bloomfield Acceptance Company, LLC ("Bloomfield"), (ii)
the Mortgage Loan Purchase Agreement, dated as of May 12, 1994, by and between
the Seller and Hanover Capital Mortgage Corporation ("Hanover"), (iii) the
Mortgage Loan Purchase Agreement, dated as of August 2, 1994, by and between the
Seller and Remsen Partners Ltd. ("Remsen"), (iv) the Mortgage Loan Purchase
Agreement dated October 31, 1994 by and between the Seller and Continental
Wingate Associates, Inc. ("Continental Wingate"), (v) Mortgage Loan Purchase
Agreement dated _____, by and between the Seller and NBD Bank, N.A. ("NBD") and
(vi) the Mortgage Loan Purchase Agreement dated June 6, 1994, by and between the
Seller and First Maryland Mortgage Corporation ("FMMC"). "Originators" mean
Bloomfield, NBD, Remsen, Continental Wingate and FMMC.
2. Representations and Warranties. (a) The Seller hereby represents
and warrants to the Company as of the Closing Date that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as
presently conducted by it;
(ii) The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated
hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(iii)Assuming the due authorization, execution and delivery of
this Agreement by the Company, this Agreement and all of the
obligations of the Seller hereunder are the legal, valid and
binding obligations of the Seller, enforceable in accordance
with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating
to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Seller does
not conflict with any provision of any law or regulation to
which the Seller is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to
which the Seller is a party or by which it is bound, or any
order or decree applicable to the Seller, or result in the
creation or imposition of any lien on any of the Seller's
assets or property, which would materially and adversely
affect the ability of the Seller to carry out the
transactions contemplated by this Agreement. The Seller has
obtained any consent, approval, authorization or order of
any court or governmental agency or body required for the
execution, delivery and performance by the Seller of this
Agreement; and
(v) There is no action, suit or proceeding pending against the
Seller in any court or by or before any other governmental
agency or instrumentality which would materially and
adversely affect the ability of the Seller to carry out its
obligations under this Agreement or have a material adverse
effect on the financial condition of the Seller or the
ability of the Seller to perform its obligations under this
Agreement.
(b) The Seller hereby represents and warrants with respect to each
Mortgage Loan and the Anchorage Participation, as applicable, that as of the
date specified below or, if no such date is specified, as of the Closing Date:
(i) Immediately prior to the sale, transfer and assignment
to the Company, each related Note and Mortgage and the
Anchorage Participation were not subject to an
assignment (other than to the Seller) or pledge, and
the Seller had good and marketable title to, and was
the sole owner of, the Mortgage Loan and the Anchorage
Participation;
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan and the Anchorage
Participation and the assignment to the Company
constitutes a legal, valid and binding assignment of
such Mortgage and the Anchorage Participation, as
applicable;
(iii) The Seller is transferring such Mortgage Loan and the
Anchorage Participation free and clear of any and all
liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan and the Anchorage
Participation subject to the matters described in
clause (xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and
Rents (if any) and other agreement executed in
connection with such Mortgage Loan are legal, valid and
binding obligations of the related Borrower,
enforceable in accordance with their terms, except as
such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights
generally, or by general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law) and to
the best of the Seller's knowledge, there is no valid
defense, counterclaim, or right of rescission available
to the related Borrower with respect to such Note,
Mortgage and other agreements;
(v) Each related Assignment of Leases and Rents creates a
valid, collateral or first priority assignment of, or a
valid first priority security interest in, certain
rights under the related lease, subject only to a
license granted to the related Borrower to exercise
certain rights and to perform certain obligations of
the lessor under such lease, including the right to
operate the related Mortgaged Property; no person other
than the related Borrower owns any interest in any
payments due under such lease that is superior to or of
equal priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Seller to
the Company and any related Reassignment of Assignment
of Leases and Rents, if any, or assignment of any other
agreement executed in connection with such Mortgage
Loan, from the Seller to the Company constitutes the
legal, valid and binding assignment from the Seller to
the Company, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(vii) Since origination, and except as set forth in the
related Mortgage File or in the mortgage file relating
to the Anchorage Loan, such Mortgage Loan and the
Anchorage Participation have not been modified,
altered, satisfied, canceled, subordinated or rescinded
and, each related Mortgaged Property has not been
released from the lien of the related Mortgage in any
manner which materially interferes with the security
intended to be provided by such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to the
matters described in clause (xi) below), and such
Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal
with the lien of the related Mortgage, except those
which are insured against by a lender's title insurance
policy (as described below);
(ix) The Seller has not taken any action that would cause
the representations and warranties made by each related
Borrower in the Mortgage Loan not to be true;
(x) The Seller has no knowledge that the representations
and warranties made by each related Borrower in such
Mortgage Loan are not true in any material respect;
(xi) The lien of each related Mortgage is a first priority
lien in the original principal amount of such Mortgage
Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth on the
Mortgage Loan Schedule) after all advances of principal
is insured by an ALTA lender's title insurance policy
(or a binding commitment therefor), or its equivalent
as adopted in the applicable jurisdiction, insuring the
Seller, its successors and assigns, subject only to (a)
the lien of current real property taxes, ground rents,
water charges, sewer rents and assessments not yet due
and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other
matters of public record, none of which, individually
or in the aggregate, materially interferes with the
current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the
borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property and
(c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the
aggregate, materially interferes with the security
intended to be provided by such Mortgage or with the
borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property; such
policy is assignable to the Company without the consent
of or any notification to the insurer, and is in full
force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims
have been made under such policy and the Seller has not
done anything, by act or omission, and the Seller has
no knowledge of any matter, which would impair or
diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future
advances thereunder and the Seller covenants that it
will not make any future advances under the Mortgage
Loan to the related Borrower;
(xiii) Each related Mortgaged Property is free of any material
damage that would affect materially and adversely the
value of such Mortgaged Property as security for the
Mortgage Loan and there is no proceeding pending for
the total or partial condemnation of such Mortgaged
Property;
(xiv) Each of the related Borrowers (and, in the case of
certain loans, each of the operators of the senior
housing/healthcare facilities) is in possession of all
material licenses, permits and other authorizations
necessary and required by all applicable laws for the
conduct of its business and all such licenses, permits
and authorizations are valid and in full force and
effect, and if a related Mortgaged Property is improved
by a senior housing or healthcare facility, the most
recent inspection or survey by governmental authorities
having jurisdiction in connection with such licenses,
permits and authorizations did not cite such Mortgaged
Property for material violations (which shall include
only "Level A" violations that have not been cured);
(xv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past 12 months or
within 1 month of origination of the Mortgage Loan;
(xvi) Such Mortgage Loan does not have a shared appreciation
feature, other contingent interest feature or negative
amortization;
(xvii) Such Mortgage Loan is a whole loan and contains no
equity participation by the Seller or the applicable
Originator;
(xviii) The Mortgage Rate (exclusive of any default interest,
late charges, or prepayment premiums) of such Mortgage
Loan complied as of the date of origination with, or is
exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury;
any and all other requirements of any federal, state or
local laws, including, without limitation,
truth-in-lending, real estate settlement procedures,
equal credit opportunity or disclosure laws, applicable
to such Mortgage Loan have been complied with as of the
date of origination of such Mortgage Loan. All
Prepayment premiums and yield maintenance premiums
constitutes "customary prepayment penalties" within the
meanings of Section 1860(b)(2) of the Code;
(xix) No fraudulent acts were committed by the Seller during
the origination process of any such Mortgage Loan
originated by it. To the best of the Seller's
knowledge, the origination, servicing and collection of
each Mortgage Loan is in all respect legal, proper and
prudent in accordance with customary industry
standards;
(xx) All taxes and governmental assessments that prior to
the Closing Date became due and owing in respect of,
each related Mortgaged Property have been paid or an
escrow of funds in an amount sufficient to cover such
payments has been established;
(xxi) All escrow deposits and payments required pursuant to
the Mortgage Loans are in the possession, or under the
control, of the Seller or its agent and there are no
deficiencies in connection therewith and all such
escrows and deposits have been conveyed by the Seller
to the Company and identified as such with appropriate
detail;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and
do business in the jurisdiction in which each related
Mortgaged Property is located at all times when it held
the Mortgage Loan;
(xxiii) Each related Mortgaged Property is insured by a fire
and extended perils insurance policy, issued by an
insurer meeting the requirements of the Pooling and
Servicing Agreement, in an amount not less than the
replacement cost and the amount necessary to avoid the
operation of any co-insurance provisions with respect
to the Mortgaged Property; each related Mortgaged
Property is also covered by business interruption
insurance and comprehensive general liability insurance
in amounts generally required by institutional lenders
for similar properties; all premiums on such insurance
policies required to be paid as of the date hereof have
been paid; such insurance policies require prior notice
to the insured of termination or cancellation, and no
such notice has been received; each related Mortgage or
Loan Agreement obligates the related Borrower to
maintain all such insurance and, at such Borrower's
failure to do so, authorizes the mortgagee to maintain
such insurance at the Borrower's cost and expense and
to seek reimbursement therefor from such Borrower;
(xxiv) There is no default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Note and, to the Seller's knowledge, no event
(other than payments due but not yet delinquent) which,
with the passage of time or with notice and the
expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of
acceleration;
(xxv) Such Mortgage Loan has not been more than 30 days
delinquent since origination and as of the Cut-off Date
was not 30 or more days delinquent;
(xxvi) Each related Mortgage contains customary and
enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the
benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure,
and there is no exemption available to the Borrower
which would interfere with such right to foreclose. To
the best of the Seller's knowledge, no Borrower is a
debtor in a state or federal bankruptcy or insolvency
preceding;
(xxvii) In each related Mortgage or Loan Agreement, the related
Borrower represents and warrants that except as set
forth in certain environmental reports or other
documents previously provided to the Rating Agencies
and to the best of its knowledge it has not used,
caused or permitted to exist and will not use, cause or
permit to exist on the related Mortgaged Property any
Hazardous Materials in any manner which violates
federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use,
storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of
Hazardous Materials; the related Borrower agrees to
indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against
losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or
suffered by, or asserted against, any such party
resulting from a breach of certain representations,
warranties or covenants given by the Borrower in such
Mortgage or Loan Agreement. A Phase I environmental
report was conducted by a reputable environmental
engineer in connection with such Mortgage Loan, which
report, except as disclosed in Exhibit A attached
hereto did not indicate any material non-compliance or
material existence of Hazardous Materials. To the best
of the Seller's knowledge, each related Mortgaged
Property, except as disclosed in Exhibit A attached
hereto, is in material compliance with all applicable
federal, state and local laws pertaining to
environmental hazards, and to the best of Seller's
knowledge, no notice of violation of such laws has been
issued by any governmental agency or authority; the
Seller has not taken any action which would cause the
related Mortgaged Property not to be in compliance with
all federal, state and local laws pertaining to
environmental hazards;
(xxviii) Each related Mortgage or Loan Agreement contains
provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if,
without complying with the requirements of the Mortgage
or Loan Agreement, the related Mortgaged Property, or
any interest therein, is directly or indirectly
transferred or sold, or encumbered in connection with
subordinate financing and each related Mortgage
prohibits the pledge or encumbrance of the Mortgaged
Property without the consent of the holder of the
Mortgage Loan;
(xxix) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential
property, and (2) the fair market value of such real
property as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage
Loan was at least equal to 80% of the principal amount
of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the
Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that
the fair market value of the real property interest
must first be reduced by (A) the amount of any lien on
the real property interest that is senior to the
Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computation described
in (a) and (b) shall be made on an aggregated basis)
and (B) a proportionate amount of any lien that is in
parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation
described in (a) and (b) shall be made on an aggregate
basis). All improvements included for MAI appraisals
are within the boundaries of the related Mortgaged
Property;
(xxx) The Mortgage Loan Schedule is complete and accurate in
all respects;
(xxxi) Each Mortgage Loan and Anchorage Participation
constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (but without regard
to the rule in Treasury Regulations 1.860 G-2(f)(2)
that treats a defective obligation as a qualified
mortgage, or any substantially similar successor
provision);
(xxxii) Each Mortgaged Property is in compliance with all
applicable laws, zoning ordinances, rules, covenants
and restrictions affecting the construction, occupancy,
use and operation of such Mortgaged Property. All
inspections, licenses and certificates required,
including certificates of occupancy, whether by law,
ordinance, regulation or insurance standards to be made
or issued with regard to the Mortgaged Property, have
been obtained and are in full force and effect;
(xxxiii) (A) Each Borrower of a Mortgage Loan is an entity whose
organizational documents provide that it is, and at
least so long as the Mortgage Loan is outstanding will
continue to be, a single-purpose entity. (For this
purpose, "single-purpose entity" shall mean a person,
other than an individual, which is formed or organized
solely for the purpose of owning and operating a single
property, does not engage in any business unrelated to
such property and its financing, does not have any
assets other than those related to its interest in the
property or its financing, or any indebtedness other
than as permitted by the related Mortgage or the other
Mortgage Loan Documents, has its own books and records
and accounts separate and apart from any other person,
and holds itself out as being a legal entity, separate
and apart from any other person);
(B) A non-consolidation opinion was obtained for each
Borrower or affiliated group of Borrowers of Mortgage
Loans or groups of Mortgage Loans with an original
principal balance in excess of $20,000,000;
(C) The general partners or managing members of
Borrowers or affiliated Borrowers of Mortgage Loans or
groups of Mortgage Loans representing more than 5% of
the Initial Pool Balance have an independent director;
(xxxiv) With respect to any Mortgage Loan where the entire
estate of the related Borrower therein is a leasehold
estate, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding it has
been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of
the related Mortgaged Property by such lessee, its
successors or assigns in a manner that would
adversely affect the security provided by the
related Mortgage. There has been no material
change in the terms of such ground lease since its
recordation, except by written instruments, all of
which are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in
writing and included in the related Mortgage File
that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee and that any such
action without such consent is not binding on the
mortgagee, its successors or assigns;
(C) The ground lease has an original term (or an
original term plus one or more optional renewal
terms, which, under all circumstances, may be
exercised, and will be enforceable, by the
mortgagee) that extends not less than 10 years
beyond the stated maturity of the related Mortgage
Loan;
(D) The ground lease is not subject to any liens or
encumbrances superior to, or of equal priority
with, the Mortgage. The ground lease is, and
provides that it shall remain, prior to any
Mortgage or other lien upon the related fee
interest;
(E) The ground lease is assignable to the mortgagee
under the leasehold estate and its assigns without
the consent of the lessor thereunder;
(F) As of the date of execution and delivery, the
ground lease is in full force and effect and no
default has occurred, nor is there any existing
condition which, but for the passage of time or
giving of notice, would result in a default under
the terms of the ground lease;
(G) The ground lease or ancillary agreement between
the lessor and the lessee requires the lessor to
give notice of any default by the lessee to the
mortgagee. The ground lease or ancillary agreement
further provides that no notice given is effective
against the mortgagee unless a copy has been given
to the mortgagee in a manner described in the
ground lease or ancillary agreement;
(H) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to
gain possession of the interest of the lessee
under the ground lease through legal proceedings,
or to take other action so long as the mortgagee
is proceeding diligently) to cure any default
under the ground lease which is curable after the
receipt of notice of any default before the lessor
may terminate the ground lease. All rights of the
mortgagee under the ground lease and the related
Mortgage (insofar as it relates to the ground
lease) may be exercised by or on behalf of the
mortgagee;
(I) The ground lease does not impose any restrictions
on subletting that would be viewed as commercially
unreasonable by an institutional investor. The
lessor is not permitted to disturb the possession,
interest or quiet enjoyment of any subtenant of
the lessee in the relevant portion of the
Mortgaged Property subject to the ground lease for
any reason, or in any manner, which would
adversely affect the security provided by the
related Mortgage;
(J) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds
or condemnation award (other than in respect of a
total or substantially total loss or taking) will
be applied either to the repair or restoration of
all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it
having the right to hold and disburse such
proceeds as repair or restoration progresses, or
to the payment of the outstanding principal
balance of the Mortgage Loan, together with any
accrued interest; and
(K) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds,
or condemnation award in respect of a total or
substantially total loss or taking of the related
Mortgaged Property will be applied first to the
payment of the outstanding principal balance of
the Mortgage Loan, together with any accrued
interest (except as provided by applicable law or
in cases where a different allocation would not be
viewed as commercially unreasonable by any
institutional investor, taking into account the
relative duration of the ground lease and the
related Mortgage and the ratio of the market value
of the related Mortgage property to the
outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued
interest rate are paid in full, neither the lessee
nor the lessor under the ground lease will have
the option to terminate or modify the ground lease
without prior written consent of the mortgagee as
a result of any casualty or partial condemnation,
except to provide for an abatement of the rent;
(xxxv) With respect to the Mortgaged Properties that have
earthquake insurance as of the Cut-off Date, such
insurance will be maintained until the principal
balances of the related Mortgage Loans are paid in
full;
(xxxvi) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are
cross-collateralized by such Mortgage Loans are
included in the Mortgage Pool;
(xxxvii) Neither the Seller nor any affiliate thereof has any
obligation or right to make any capital contribution to
any Borrower under a Mortgage Loan, other than
contributions made on or prior to the Closing Date;
(xxxviii) Except as disclosed in the Prospectus Supplement dated
October 16, 1996 and relating to the Certificates, no
borrower under a Mortgage Loan is an affiliate of a
borrower under any other Mortgage Loan; and
(xxxix) After receipt of the Purchase Price, the Seller has no
right of set-off with respect to the transfer of the
Mortgage Loans and the Anchorage Participation to the
Purchaser.
(c) The Seller has not dealt with any broker, investment banker, agent
or other person (other than the Company, the Underwriter and the Placement
Agent) who may be entitled to any commission or compensation in connection with
the sale to the Company of the Mortgage Loans.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling
and Servicing Agreement, the Seller and the Company shall be given notice of (A)
any breach of any representation or warranty contained in Section 2(b) (i),
(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv), (xvi),
(xvii), (xviii), (xix), (xx), (xxiv), (xxv), (xxvii), (xxix), (xxxi) or (xxxv)
and (B) any breach of any representation or warranty contained in Section 2(b),
(x), (xiii), (xiv), (xxi), (xxii), (xxiii), (xxvi), (xxviii), (xxx), (xxxii),
(xxxiii), (xxxiv), (xxxvi), (xxxvii), (xxxviii) or (xxxix) that materially and
adversely affects the value of such Mortgage Loan or the interests of the
holders of the Certificates therein.
(b) Within 90 days of the receipt of the notice (or with respect to
the representation and warranty contained in Section 2(b)(xxx) or (xxxii),
discovery) of a breach provided for in clause (a), the Seller shall either (i)
repurchase the related Mortgage Loan or Anchorage Participation at the
Repurchase Price or (ii) promptly cure such breach in all material respects;
provided, however, that in the event that such breach (other than a breach of
Section 2(b)(xxx) or (xxxii)) is capable of being cured but not within such 90
day period and the Seller has commenced and is diligently proceeding with the
cure of such breach within such 90 day period, the Seller shall have an
additional 90 days to complete such cure, provided, further, that with respect
to such additional 90 day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth the reason such breach is not capable
of being cured within the initial 90 day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such breach will be cured within the additional 90 day period;
and provided, further, that in the event that the Seller fails to complete the
cure of such breach within such additional 90 day period, the Repurchase Price
shall also include interest at the Advance Rate on any Advance made by the
Servicer in respect of the related Mortgage Loan or the Anchorage Participation.
Upon any such repurchase of a Mortgage Loan or the Anchorage Participation by
Seller, the Company shall execute and deliver such instruments of transfer or
assignment presented to it by Seller, in each case without recourse, as shall be
necessary to vest in Seller the legal and beneficial ownership of such Mortgage
Loan or the Anchorage Participation (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto) and the rights
with respect thereto under the applicable Originator's Mortgage Loan Purchase
Agreement (including, without limitation, the rights and remedies with respect
to representations and warranties made by the Originator thereunder relating to
such Mortgage Loan), and shall deliver the related Mortgage File to Seller or
its designee after receipt of the related repurchase price.
(c) The Seller hereby acknowledges the assignment by the Company to
the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Holders of the Certificates, of the representations and
warranties contained herein and of the obligation of the Seller to repurchase a
Mortgage Loan or the Anchorage Participation pursuant to this Section. The
Trustee or its designee may enforce such obligation as provided in Section 8(b)
hereof.
4. Opinions of Counsel. The Seller hereby covenants to the Company to,
simultaneously with the execution hereof, deliver or cause to be delivered to
the Company opinions of counsel as to various corporate matters in form
satisfactory to the Company.
5. Underwriting. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or the Anchorage Participation, reasonably requested by the
Company in order to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement or the Purchase Agreement at or prior to the Closing Date.
6. Costs. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement and the Purchase
Agreement, including without limitation (i) any recording fees or fees for title
policy endorsements and continuations, (ii) the expenses of preparing, printing
and reproducing the Prospectus Supplement, Private Placement Memorandum dated
October 22, 1996 relating to the Certificates, the Underwriting Agreement, the
Placement Agreement, the Pooling and Servicing Agreement and the Certificates
and (iii) the cost of delivering the Certificates to the office of the
Underwriter or the purchaser of the Certificates, as applicable, insured to the
satisfaction of the Underwriter or such purchaser, as applicable.
7. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 2 World Financial Center -
Building B, New York, New York 10281-1198 attention of Manager - Mortgage
Finance Department, or, if sent to the Seller, will be mailed, delivered or
telegraphed and confirmed to it at 2 World Financial Center - Building B, New
York, New York 10281-1198 attention of Manager - Mortgage Finance Department.
8. Trustee Beneficiary. The representations, warranties and agreements
made by the Seller in this Agreement are made for the benefit of, and may be
enforced by or on behalf of, the Trustee and the Holders of Certificates to the
same extent that the Company has rights against the Seller under this Agreement
in respect of representations, warranties and agreements made by the Seller
herein and such representations and warranties shall survive delivery of the
respective Mortgage Files to the Trustee until the termination of the Pooling
and Servicing Agreement.
9. Miscellaneous. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought. This Agreement may not be changed in
any manner which would have a material adverse effect on Holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Section 10.07 of
the Pooling and Servicing Agreement. This Agreement may be executed in any
number of counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and no other person
will have any right or obligation hereunder, other than as provided in Section 8
hereof.
10. Third Party Beneficiary. Nomura Securities International, Inc. is
an intended third party beneficiary of the representations and warranties of the
Seller set forth in Article 2 hereof.
<PAGE>
IN WITNESS WHEREOF, the Company and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ASSET SECURITIZATION CORPORATION
By:_______________________________
Name:
Title:
NOMURA ASSET CAPITAL CORPORATION
By:_______________________________
Name:
Title:
<PAGE>
EXHIBIT J
<TABLE>
<CAPTION>
ASC 1996-D3 Quarterly Collateral Summary
Property 1995 Current NOI Current
-------- ---- ------- --- -------
Property Type City State 1995 NOI* DSCR NOI As of DSCR
-------- ---- ---- ----- --------- ---- --- ----- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Pool Name (if
applicable)
Property Name
Property Name
Property Name
Property Name
Property Name
Total for Pool
Property Name
Property Name
Property Name
<FN>
* Use most recent year end NOI, Occupancy and ADR
</FN>
</TABLE>
<TABLE>
1995 Current Occ 1995 Current ADR
---- ------- --- ---- ------- ---
Property Occupancy* Occupancy As of ADR0 ADR As of
-------- ---------- --------- ----- ---- --- -----
<S> <C> <C> <C> <C> <C> <C>
Pool Name (if
applicable)
Property Name
Property Name
Property Name
Property Name
Property Name
Total for Pool
Property Name
Property Name
Property Name
<FN>
* Use most recent year end NOI, Occupancy and ADR
</FN>
</TABLE>
<PAGE>
EXHIBIT K
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(c)(ii)(A) of the Pooling and Servicing Agreement)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-D3 Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated
as of October 1, 1996 (the "Pooling and Servicing Agreement"), by and among
Asset Securitization Corporation, as depositor (the "Depositor"), AMRESCO
Management, Inc., as servicer (the "Servicer") and special servicer, LaSalle
National Bank, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent (the "Fiscal Agent"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate Balance
of Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. ) with the Depository in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest for an interest in the Regulation S Global Certificate
(CUSIP No. ) to be held with [Euroclear] [CEDEL]* (Common Code ) through the
Depositary.
___________________________
* Select appropriate depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]**
_____________________
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Fiscal Agent.
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated: _____________, ____
<PAGE>
EXHIBIT L
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated
as of October 1, 1996 (the "Pooling and Servicing Agreement"), by and among
Asset Securitization Corporation, as depositor (the "Depositor"), AMRESCO
Management, Inc., as servicer (the "Servicer") and special servicer, LaSalle
National Bank, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent (the "Fiscal Agent"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate Balance
of Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. ) with the Depository in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Certificates for an interest in the Regulation S
Global Certificate (Common Code No. ).
In connection with such request, and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and, (i) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]*
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]*
_______________________
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Fiscal Agent and the
Servicer.
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated: ____ __, ____
<PAGE>
EXHIBIT M
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(C) of the Pooling and Servicing Agreement)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1996-D3, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated
as of October 1, 1996 (the "Pooling and Servicing Agreement"), by and among
Asset Securitization Corporation, as depositor (the "Depositor"), AMRESCO
Management, Inc., as servicer (the "Servicer") and special servicer, LaSalle
National Bank, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate Balance
of Certificates (the "Certificates") which are held in the form of the
Regulation S Global Certificate (CUSIP No. __________) with [Euroclear] [CEDEL]*
(Common Code __________) through the Depository in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Certificates for an interest in the Regulation 144A
Global Certificate (CUSIP No. __________).
_______________
* Select appropriate depository.
In connection with such request, and in respect of such Certificates,
the Transferor does hereby certify that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and (ii) Rule 144A under the Securities Act to a transferee
that the Transferor reasonably believes is purchasing the Certificates for its
own account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Servicer, and
Underwriter and placement agent of the offering of the Certificates.
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated: ____ __, 19__
<PAGE>
EXHIBIT N
SCHEDULE OF REQUIRED RESERVE AMOUNTS
- - ------------------------------------------------------------------------------
Property Name Reserve for Deferred Maintenance
- - -------------------------------------------------------------------------------
Hyatt Riverwalk - San Antonio $ 36,875
- - -------------------------------------------------------------------------------
Montego Bay 196,140
- - -------------------------------------------------------------------------------
Antigua Bay 323,400
- - -------------------------------------------------------------------------------
Martinique Bay 123,585
- - -------------------------------------------------------------------------------
Club Pacific at Flamingo 128,100
- - -------------------------------------------------------------------------------
Club Pacific at Shores 103,404
- - -------------------------------------------------------------------------------
Club Pacific at Lakes 7,088
- - -------------------------------------------------------------------------------
Mariner's Village 303,000
- - -------------------------------------------------------------------------------
Anchorage Shopping Center 285,625
- - -------------------------------------------------------------------------------
Lee Park 206,875
- - -------------------------------------------------------------------------------
Atlanta Decorative Art Center 81,013
- - -------------------------------------------------------------------------------
Lake Arrowhead Village 24,670
- - -------------------------------------------------------------------------------
Comfort Inn -- Mystic 81,225
- - -------------------------------------------------------------------------------
Residence Inn -- Norman 51,938
- - -------------------------------------------------------------------------------
Comfort Inn -- Southington 57,296
- - -------------------------------------------------------------------------------
Holiday Inn -- Cromwell 64,500
- - -------------------------------------------------------------------------------
Ramada Inn -- Pensacola 35,635
- - -------------------------------------------------------------------------------
Ramada Plaza-- Fon du Lac 4,175
- - -------------------------------------------------------------------------------
Carter Creek 10,500
- - -------------------------------------------------------------------------------
University Hills 7,000
- - -------------------------------------------------------------------------------
Triple Creek 600
- - -------------------------------------------------------------------------------
Plaza 29,250
- - -------------------------------------------------------------------------------
Edgewood 34,025
- - -------------------------------------------------------------------------------
Limestone Square 22,570
- - -------------------------------------------------------------------------------
Brookhaven 50,500
- - -------------------------------------------------------------------------------
Sacramento Office 92,500
- - -------------------------------------------------------------------------------
Simi Valley Plaza 7,500
- - -------------------------------------------------------------------------------
Westway Village 88,105
- - -------------------------------------------------------------------------------
Coral Cove 13,700
- - -------------------------------------------------------------------------------
Summit Creek 91,000
- - -------------------------------------------------------------------------------
Village Squire Apartments 306,478
- - -------------------------------------------------------------------------------
RCA - Addison 235,060
- - -------------------------------------------------------------------------------
Hampton Inn -- Key West 898,569
- - -------------------------------------------------------------------------------
Hawaiian Gardens 36,125
- - -------------------------------------------------------------------------------
Spanish Main RV & MHP 158,938
- - -------------------------------------------------------------------------------
Ellenton Gardens 9,063
- - -------------------------------------------------------------------------------
Millcreek RV Resorts 76,313
- - -------------------------------------------------------------------------------
Holiday Inn -- Wilmington 61,563
- - -------------------------------------------------------------------------------
Ridgewood Village Apartments 115,250
- - -------------------------------------------------------------------------------
Martin Luther King 1,250
- - -------------------------------------------------------------------------------
Van Ness 8,500
- - -------------------------------------------------------------------------------
Hoover 2,500
- - -------------------------------------------------------------------------------
Adams 1,250
- - -------------------------------------------------------------------------------
Towne Pointe 6,531
- - -------------------------------------------------------------------------------
Crosspointe 52,500
- - -------------------------------------------------------------------------------
Grammercy Apts 8,750
- - -------------------------------------------------------------------------------
First Tennessee Bank Building 289,586
- - -------------------------------------------------------------------------------
Hechinger's Plaza 4,375
- - -------------------------------------------------------------------------------
Blockbuster/Staples 2,425
- - -------------------------------------------------------------------------------
Holiday Inn -- Owensboro 32,125
- - -------------------------------------------------------------------------------
Days Inn -- Owensboro 52,250
- - -------------------------------------------------------------------------------
Regency Towers 31,088
- - -------------------------------------------------------------------------------
Days Inn -- Annapolis 39,125
- - -------------------------------------------------------------------------------
Nations Bank Building 938
- - -------------------------------------------------------------------------------
Charleston Park 52,750
- - -------------------------------------------------------------------------------
Best Western -- Lafayette 84,063
- - -------------------------------------------------------------------------------
Pecan Crossing 155,938
- - -------------------------------------------------------------------------------
Barcelona Court 45,313
- - -------------------------------------------------------------------------------
Best Western -- Sunrise 36,563
- - -------------------------------------------------------------------------------
Crestview Plaza 67,844
- - -------------------------------------------------------------------------------
Monroe Gardens 308,074
- - -------------------------------------------------------------------------------
Marysville Estate 60,000
- - -------------------------------------------------------------------------------
9300 Wilshire Blvd. 10,625
- - -------------------------------------------------------------------------------
Cypress Grove Apartments 164,125
- - -------------------------------------------------------------------------------
Best Western -- Galveston 24,375
- - -------------------------------------------------------------------------------
Fox Glen Apartments 92,238
- - -------------------------------------------------------------------------------
Hampton Inn -- Memphis 64,500
- - -------------------------------------------------------------------------------
Holiday Inn -- Monroe 14,614
- - -------------------------------------------------------------------------------
Ramada Inn Williamsburg 93,154
- - -------------------------------------------------------------------------------
Franklin Estates 29,000
- - -------------------------------------------------------------------------------
Comfort Inn -- Salisbury 63,613
- - -------------------------------------------------------------------------------
122-124 Duane Street 151,625
- - -------------------------------------------------------------------------------
East Street Trading Center 24,375
- - -------------------------------------------------------------------------------
Brookwood MHP 38,125
- - -------------------------------------------------------------------------------
Holiday Inn -- Denton 91,125
- - -------------------------------------------------------------------------------
Woodridge Estates 63,125
- - -------------------------------------------------------------------------------
Torrance Plaza Hotel 26,876
- - -------------------------------------------------------------------------------
Foothill Courtyard Apartments 13,906
- - -------------------------------------------------------------------------------
I. Goldberg Shopping Center 8,870
- - -------------------------------------------------------------------------------
Chateau Forest 7,500
- - -------------------------------------------------------------------------------
Plantation Oaks 5,000
- - -------------------------------------------------------------------------------
Maple Park Terrace Apartments 47,133
- - -------------------------------------------------------------------------------
Best Western -- Goodyear 5,408
- - -------------------------------------------------------------------------------
Holiday Inn -- Salt Lake 119,899
- - -------------------------------------------------------------------------------
Days Inn -- San Jose 28,125
- - -------------------------------------------------------------------------------
Casas Adobes 15,000
- - -------------------------------------------------------------------------------
Ramada Limited -- Denver North 13,956
- - -------------------------------------------------------------------------------
Branch Avenue Plaza 247,136
- - -------------------------------------------------------------------------------
Crystal Lake MHP 5,883
- - -------------------------------------------------------------------------------
Park Hallow Apartments 384,376
- - -------------------------------------------------------------------------------
Stratford Arms Apartments 251,650
- - -------------------------------------------------------------------------------
Best Western-- Monterey 12,625
- - -------------------------------------------------------------------------------
Country Hearth Inn -- Auburn 22,438
- - -------------------------------------------------------------------------------
Johanna Woods 10,625
- - -------------------------------------------------------------------------------
Tara -- MHP 135,000
- - -------------------------------------------------------------------------------
Country Hearth Inn -- Findlay 7,250
- - -------------------------------------------------------------------------------
Ridgewood MHP 8,125
- - -------------------------------------------------------------------------------
Coachland MHP 16,375
- - --------------------------------------------------------------------------------
Cardinal Village Apartments 66,469
- - -------------------------------------------------------------------------------
Grandmont Gardens 10,725
- - -------------------------------------------------------------------------------
Quality Inn Roanoke 56,563
- - -------------------------------------------------------------------------------
Red Carpet Apartments 67,853
- - -------------------------------------------------------------------------------
Locust Grove MHP 8,126
- - -------------------------------------------------------------------------------
Georgian Heights Apartments 44,613
- - -------------------------------------------------------------------------------
Country Club Corners 43,750
- - -------------------------------------------------------------------------------
Mobile Gardens MHP 5,700
- - -------------------------------------------------------------------------------
Cactus Wren MHP 10,625
- - -------------------------------------------------------------------------------
Solana Y. Sombra 12,919
- - -------------------------------------------------------------------------------
Mobile Estates 10,000
- - -------------------------------------------------------------------------------
Phoenix West MHP 34,425
- - -------------------------------------------------------------------------------
Havre de Grace Super 8 63
- - -------------------------------------------------------------------------------
Farmville Super 8 781
- - -------------------------------------------------------------------------------
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "Agreement") dated as
of October 22, 1996, is between Asset Securitization Corporation, a Delaware
corporation (the "Company"), and Nomura Asset Capital Corporation, a Delaware
corporation (the "Seller"). The Seller agrees to sell, and the Company agrees to
purchase (i) the mortgage loans (the "Mortgage Loans") described in, and set
forth in, the Mortgage Loan Schedule attached as Exhibit B to the Pooling and
Servicing Agreement dated as of October 1, 1996 (the "Pooling and Servicing
Agreement"), among the Company, AMRESCO Management, Inc., as servicer (in such
capacity, the "Servicer"), CRIIMI MAE Services Limited Partnership, as special
servicer, LaSalle National Bank, as trustee (the "Trustee"), and ABN AMRO Bank
N.V., as fiscal agent, relating to the issuance of the Asset Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-D3 (the
"Certificates") and (ii) the participation interest of the seller, pursuant to
the participation agreement dated the Closing Date, between the Seller and the
Company (the "Anchorage Participation"), the in Mortgage Loan (the "Anchorage
Loan") secured by the property (the "Anchorage Property") identified as the
"Anchorage Shopping Center" on the Mortgage Loan Schedule. Capitalized terms
used without definition herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement or, if not defined therein, in the
Underwriting Agreement, dated October 16, 1996 (the "Underwriting Agreement"),
by and between the Company and Nomura Securities International, Inc. (in such
capacity, the "Underwriter") or in the Purchase Agreement, dated October 22,
1996 (the "Purchase Agreement"), by and between the Company and Nomura
Securities International, Inc. (in such capacity, the "Placement Agent").
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans and the Anchorage Participation shall be an
amount agreed upon by the parties in a separate writing, which amount shall be
payable by the Company to the Seller on the Closing Date (except as provided
below) in immediately available funds. The closing for the purchase and sale of
the Mortgage Loans and the Anchorage Participation shall take place at the
offices of Cadwalader, Wickersham & Taft, New York, New York, at 10:00 a.m. New
York time, on the Closing Date.
On the Closing Date, the Company shall pay the Purchase Price to the
Seller. As of the Closing Date, the Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Company all the right, title and interest
of the Seller in and to the Mortgage Loans and the Anchorage Participation,
including all interest and principal due on or with respect to the Mortgage
Loans and the Anchorage Participation after the Cut-off Date, together with all
of the Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance policies. In addition, as of
the Closing Date, the Seller hereby transfers, assigns, sets over and otherwise
conveys to the Company all the right, title and interest of the Seller in and to
the Originator's Mortgage Loan Purchase Agreements (as defined below) and each
of which is attached hereto, insofar as such rights relate to the Mortgage Loans
including, but not limited to, the obligations of the Originators (as defined
below) pursuant to the Originator's Mortgage Loan Purchase Agreements to
repurchase Mortgage Loans with respect to which there exists a breach of one or
more of the Originator's representations and warranties made in the applicable
Originator's Mortgage Loan Purchase Agreement. The Company hereby directs the
Seller, and the Seller hereby agrees, to deliver to the Trustee all documents,
instruments and agreements required to be delivered by the Company to the
Custodian on behalf of the Trustee under the Pooling and Servicing Agreement and
such other documents, instruments and agreements as the Company or the Trustee
shall reasonably request. "Originator's Mortgage Loan Purchase Agreements" mean
(i) the Mortgage Loan Purchase Agreement, dated as of May 16, 1994, by and
between the Seller and Bloomfield Acceptance Company, LLC ("Bloomfield"), (ii)
the Mortgage Loan Purchase Agreement, dated as of May 12, 1994, by and between
the Seller and Hanover Capital Mortgage Corporation ("Hanover"), (iii) the
Mortgage Loan Purchase Agreement, dated as of August 2, 1994, by and between the
Seller and Remsen Partners Ltd. ("Remsen"), (iv) the Mortgage Loan Purchase
Agreement dated October 31, 1994 by and between the Seller and Continental
Wingate Associates, Inc. ("Continental Wingate"), (v) Mortgage Loan Purchase
Agreement dated _____, by and between the Seller and NBD Bank, N.A. ("NBD") and
(vi) the Mortgage Loan Purchase Agreement dated June 6, 1994, by and between the
Seller and First Maryland Mortgage Corporation ("FMMC"). "Originators" mean
Bloomfield, NBD, Remsen, Continental Wingate and FMMC.
2. Representations and Warranties. (a) The Seller hereby represents and
warrants to the Company as of the Closing Date that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as
presently conducted by it;
(ii) The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated
hereby, including, but not limited to, the power and authority
to sell, assign and transfer the Mortgage Loans in accordance
with this Agreement;
(iii) Assuming the due authorization, execution and delivery of this
Agreement by the Company, this Agreement and all of the
obligations of the Seller hereunder are the legal, valid and
binding obligations of the Seller, enforceable in accordance
with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating
to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Seller does
not conflict with any provision of any law or regulation to
which the Seller is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to
which the Seller is a party or by which it is bound, or any
order or decree applicable to the Seller, or result in the
creation or imposition of any lien on any of the Seller's
assets or property, which would materially and adversely
affect the ability of the Seller to carry out the transactions
contemplated by this Agreement. The Seller has obtained any
consent, approval, authorization or order of any court or
governmental agency or body required for the execution,
delivery and performance by the Seller of this Agreement; and
(v) There is no action, suit or proceeding pending against the
Seller in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the ability of the Seller to carry out its obligations
under this Agreement or have a material adverse effect on the
financial condition of the Seller or the ability of the Seller
to perform its obligations under this Agreement.
(b) The Seller hereby represents and warrants with respect to each Mortgage
Loan and the Anchorage Participation, as applicable, that as of the date
specified below or, if no such date is specified, as of the Closing Date:
(i) Immediately prior to the sale, transfer and assignment to the
Company, each related Note and Mortgage and the Anchorage
Participation were not subject to an assignment (other than to
the Seller) or pledge, and the Seller had good and marketable
title to, and was the sole owner of, the Mortgage Loan and the
Anchorage Participation;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the Anchorage Participation
and the assignment to the Company constitutes a legal, valid
and binding assignment of such Mortgage and the Anchorage
Participation, as applicable;
(iii) The Seller is transferring such Mortgage Loan and the
Anchorage Participation free and clear of any and all liens,
pledges, charges or security interests of any nature
encumbering such Mortgage Loan and the Anchorage Participation
subject to the matters described in clause (xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and Rents
(if any) and other agreement executed in connection with such
Mortgage Loan are legal, valid and binding obligations of the
related Borrower, enforceable in accordance with their terms,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and to the best of the Seller's knowledge, there is no
valid defense, counterclaim, or right of rescission available
to the related Borrower with respect to such Note, Mortgage
and other agreements;
(v) Each related Assignment of Leases and Rents creates a valid,
collateral or first priority assignment of, or a valid first
priority security interest in, certain rights under the
related lease, subject only to a license granted to the
related Borrower to exercise certain rights and to perform
certain obligations of the lessor under such lease, including
the right to operate the related Mortgaged Property; no person
other than the related Borrower owns any interest in any
payments due under such lease that is superior to or of equal
priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Company and any related Reassignment of Assignment of Leases
and Rents, if any, or assignment of any other agreement
executed in connection with such Mortgage Loan, from the
Seller to the Company constitutes the legal, valid and binding
assignment from the Seller to the Company, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other
laws relating to or affecting creditors' rights generally, or
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(vii) Since origination, and except as set forth in the related
Mortgage File or in the mortgage file relating to the
Anchorage Loan, such Mortgage Loan and the Anchorage
Participation have not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related
Mortgaged Property has not been released from the lien of the
related Mortgage in any manner which materially interferes
with the security intended to be provided by such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to the matters
described in clause (xi) below), and such Mortgaged Property
is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's
title insurance policy (as described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related Borrower
in the Mortgage Loan not to be true;
(x) The Seller has no knowledge that the representations and
warranties made by each related Borrower in such Mortgage Loan
are not true in any material respect;
(xi) The lien of each related Mortgage is a first priority lien in
the original principal amount of such Mortgage Loan or
allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth on the Mortgage Loan
Schedule) after all advances of principal is insured by an
ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable
jurisdiction, insuring the Seller, its successors and assigns,
subject only to (a) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not
yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the
aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by
such Mortgage or with the borrower's ability to pay its
obligations when they become due or the value of the Mortgaged
Property and (c) the exceptions (general and specific) set
forth in such policy, none of which, individually or in the
aggregate, materially interferes with the security intended to
be provided by such Mortgage or with the borrower's ability to
pay its obligations when they become due or the value of the
Mortgaged Property; such policy is assignable to the Company
without the consent of or any notification to the insurer, and
is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have
been made under such policy and the Seller has not done
anything, by act or omission, and the Seller has no knowledge
of any matter, which would impair or diminish the coverage of
such policy;
(xii) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and
the Seller covenants that it will not make any future advances
under the Mortgage Loan to the related Borrower;
(xiii) Each related Mortgaged Property is free of any material damage
that would affect materially and adversely the value of such
Mortgaged Property as security for the Mortgage Loan and there
is no proceeding pending for the total or partial condemnation
of such Mortgaged Property;
(xiv) Each of the related Borrowers (and, in the case of certain
loans, each of the operators of the senior housing/healthcare
facilities) is in possession of all material licenses, permits
and other authorizations necessary and required by all
applicable laws for the conduct of its business and all such
licenses, permits and authorizations are valid and in full
force and effect, and if a related Mortgaged Property is
improved by a senior housing or healthcare facility, the most
recent inspection or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and
authorizations did not cite such Mortgaged Property for
material violations (which shall include only "Level A"
violations that have not been cured);
(xv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past 12 months or within
1 month of origination of the Mortgage Loan;
(xvi) Such Mortgage Loan does not have a shared appreciation
feature, other contingent interest feature or negative
amortization;
(xvii) Such Mortgage Loan is a whole loan and contains no equity
participation by the Seller or the applicable Originator;
(xviii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan
complied as of the date of origination with, or is exempt
from, applicable state or federal laws, regulations and other
requirements pertaining to usury; any and all other
requirements of any federal, state or local laws, including,
without limitation, truth-in-lending, real estate settlement
procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan. All Prepayment
premiums and yield maintenance premiums constitutes "customary
prepayment penalties" within the meanings of ss.1860(b)(2) of
the Code;
(xix) No fraudulent acts were committed by the Seller during the
origination process of any such Mortgage Loan originated by
it. To the best of the Seller's knowledge, the origination,
servicing and collection of each Mortgage Loan is in all
respect legal, proper and prudent in accordance with customary
industry standards;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of, each related
Mortgaged Property have been paid or an escrow of funds in an
amount sufficient to cover such payments has been established;
(xxi) All escrow deposits and payments required pursuant to the
Mortgage Loans are in the possession, or under the control, of
the Seller or its agent and there are no deficiencies in
connection therewith and all such escrows and deposits have
been conveyed by the Seller to the Company and identified as
such with appropriate detail;
(xxii) To the extent required under applicable law, as of the Cut-off
Date, the Seller was authorized to transact and do business in
the jurisdiction in which each related Mortgaged Property is
located at all times when it held the Mortgage Loan;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting
the requirements of the Pooling and Servicing Agreement, in an
amount not less than the replacement cost and the amount
necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; each
related Mortgaged Property is also covered by business
interruption insurance and comprehensive general liability
insurance in amounts generally required by institutional
lenders for similar properties; all premiums on such insurance
policies required to be paid as of the date hereof have been
paid; such insurance policies require prior notice to the
insured of termination or cancellation, and no such notice has
been received; each related Mortgage or Loan Agreement
obligates the related Borrower to maintain all such insurance
and, at such Borrower's failure to do so, authorizes the
mortgagee to maintain such insurance at the Borrower's cost
and expense and to seek reimbursement therefor from such
Borrower;
(xxiv) There is no default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Note and, to the Seller's knowledge, no event (other
than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace
or cure period, would and does constitute a default, breach,
violation or event of acceleration;
(xxv) Such Mortgage Loan has not been more than 30 days delinquent
since origination and as of the Cut-off Date was not 30 or
more days delinquent;
(xxvi) Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial
foreclosure, and there is no exemption available to the
Borrower which would interfere with such right to foreclose.
To the best of the Seller's knowledge, no Borrower is a debtor
in a state or federal bankruptcy or insolvency preceding;
(xxvii) In each related Mortgage or Loan Agreement, the related
Borrower represents and warrants that except as set forth in
certain environmental reports or other documents previously
provided to the Rating Agencies and to the best of its
knowledge it has not used, caused or permitted to exist and
will not use, cause or permit to exist on the related
Mortgaged Property any Hazardous Materials in any manner which
violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use,
storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of Hazardous Materials; the
related Borrower agrees to indemnify, defend and hold the
mortgagee and its successors and assigns harmless from and
against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or
asserted against, any such party resulting from a breach of
certain representations, warranties or covenants given by the
Borrower in such Mortgage or Loan Agreement. A Phase I
environmental report was conducted by a reputable
environmental engineer in connection with such Mortgage Loan,
which report, except as disclosed in Exhibit A attached hereto
did not indicate any material non-compliance or material
existence of Hazardous Materials. To the best of the Seller's
knowledge, each related Mortgaged Property, except as
disclosed in Exhibit A attached hereto, is in material
compliance with all applicable federal, state and local laws
pertaining to environmental hazards, and to the best of
Seller's knowledge, no notice of violation of such laws has
been issued by any governmental agency or authority; the
Seller has not taken any action which would cause the related
Mortgaged Property not to be in compliance with all federal,
state and local laws pertaining to environmental hazards;
(xxviii) Each related Mortgage or Loan Agreement contains provisions
for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or Loan Agreement, the related
Mortgaged Property, or any interest therein, is directly or
indirectly transferred or sold, or encumbered in connection
with subordinate financing and each related Mortgage prohibits
the pledge or encumbrance of the Mortgaged Property without
the consent of the holder of the Mortgaged Loan;
(xxix) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and
(2) the fair market value of such real property as evidenced
by an MAI appraisal conducted within 12 months of the
origination of the Mortgage Loan was at least equal to 80% of
the principal amount of the Mortgage Loan (a) at origination
(or if the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code
at a time when the Mortgage Loan was not in default or default
with respect thereto was not reasonably foreseeable, the date
of the last such modification) or (b) at the Closing Date;
provided that the fair market value of the real property
interest must first be reduced by (A) the amount of any lien
on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in
which event the computation described in (a) and (b) shall be
made on an aggregated basis) and (B) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event
the computation described in (a) and (b) shall be made on an
aggregate basis). All improvements included for MAI appraisals
are within the boundaries of the related Mortgaged Property;
(xxx) The Mortgage Loan Schedule is complete and accurate in all
respects;
(xxxi) Each Mortgage Loan and Anchorage Participation constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code (but without regard to the rule in Treasury
Regulations 1.860 G-2(f)(2) that treats a defective obligation
as a qualified mortgage, or any substantially similar
successor provision);
(xxxii) Each Mortgaged Property is in compliance with all applicable
laws, zoning ordinances, rules, covenants and restrictions
affecting the construction, occupancy, use and operation of
such Mortgaged Property. All inspections, licenses and
certificates required, including certificates of occupancy,
whether by law, ordinance, regulation or insurance standards
to be made or issued with regard to the Mortgaged Property,
have been obtained and are in full force and effect;
(xxxiii) (A) Each Borrower of a Mortgage Loan is an entity whose
organizational documents provide that it is, and at least so
long as the Mortgage Loan is outstanding will continue to be,
a single-purpose entity. (For this purpose, "single-purpose
entity" shall mean a person, other than an individual, which
is formed or organized solely for the purpose of owning and
operating a single property, does not engage in any business
unrelated to such property and its financing, does not have
any assets other than those related to its interest in the
property or its financing, or any indebtedness other than as
permitted by the related Mortgage or the other Mortgage Loan
Documents, has its own books and records and accounts separate
and apart from any other person, and holds itself out as being
a legal entity, separate and apart from any other person);
(B) A non-consolidation opinion was obtained for each
Borrower or affiliated group of Borrowers of Mortgage
Loans or groups of Mortgage Loans with an original
principal balance in excess of $20,000,000;
(C) The general partners or managing members of Borrowers
or affiliated Borrowers of Mortgage Loans or groups
of Mortgage Loans representing more than 5% of the
Initial Pool Balance have an independent director;
(xxxiv) With respect to any Mortgage Loan where the entire estate of
the related Borrower therein is a leasehold estate, the Seller
represents and warrants that:
(A) The ground lease or a memorandum regarding it has
been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of the
related Mortgaged Property by such lessee, its
successors or assigns in a manner that would
adversely affect the security provided by the related
Mortgage. There has been no material change in the
terms of such ground lease since its recordation,
except by written instruments, all of which are
included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in
writing and included in the related Mortgage File
that the ground lease may not be amended, modified,
canceled or terminated without the prior written
consent of the mortgagee and that any such action
without such consent is not binding on the mortgagee,
its successors or assigns;
(C) The ground lease has an original term (or an original
term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will
be enforceable, by the mortgagee) that extends not
less than 10 years beyond the stated maturity of the
related Mortgage Loan;
(D) The ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the Mortgage. The ground lease is, and provides that
it shall remain, prior to any Mortgage or other lien
upon the related fee interest;
(E) The ground lease is assignable to the mortgagee under
the leasehold estate and its assigns without the
consent of the lessor thereunder;
(F) As of the date of execution and delivery, the ground
lease is in full force and effect and no default has
occurred, nor is there any existing condition which,
but for the passage of time or giving of notice,
would result in a default under the terms of the
ground lease;
(G) The ground lease or ancillary agreement between the
lessor and the lessee requires the lessor to give
notice of any default by the lessee to the mortgagee.
The ground lease or ancillary agreement further
provides that no notice given is effective against
the mortgagee unless a copy has been given to the
mortgagee in a manner described in the ground lease
or ancillary agreement;
(H) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under the
ground lease through legal proceedings, or to take
other action so long as the mortgagee is proceeding
diligently) to cure any default under the ground
lease which is curable after the receipt of notice of
any default before the lessor may terminate the
ground lease. All rights of the mortgagee under the
ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or
on behalf of the mortgagee;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially
unreasonable by an institutional investor. The lessor
is not permitted to disturb the possession, interest
or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any
manner, which would adversely affect the security
provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or
condemnation award (other than in respect of a total
or substantially total loss or taking) will be
applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as repair or
restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan,
together with any accrued interest; and
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or
condemnation award in respect of a total or
substantially total loss or taking of the related
Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest
(except as provided by applicable law or in cases
where a different allocation would not be viewed as
commercially unreasonable by any institutional
investor, taking into account the relative duration
of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgage
property to the outstanding principal balance of such
Mortgage Loan). Until the principal balance and
accrued interest rate are paid in full, neither the
lessee nor the lessor under the ground lease will
have the option to terminate or modify the ground
lease without prior written consent of the mortgagee
as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent;
(xxxv) With respect to the Mortgaged Properties that have earthquake
insurance as of the Cut-off Date, such insurance will be
maintained until the principal balances of the related
Mortgage Loans are paid in full;
(xxxvi) With respect to Mortgage Loans that are cross-collateralized,
all other loans that are cross-collateralized by such Mortgage
Loans are included in the Mortgage Pool;
(xxxvii) Neither the Seller nor any affiliate thereof has any
obligation or right to make any capital contribution to any
Borrower under a Mortgage Loan, other than contributions made
on or prior to the Closing Date;
(xxxviii)Except as disclosed in the Prospectus Supplement dated
October 16, 1996 and relating to the Certificates, no borrower
under a Mortgage Loan is an affiliate of a borrower under any
other Mortgage Loan; and
(xxxix) After receipt of the Purchase Price, the Seller has no right
of set-off with respect to the transfer of the Mortgage Loans
and the Anchorage Participation to the Purchaser.
(c) The Seller has not dealt with any broker, investment banker, agent or
other person (other than the Company, the Underwriter and the Placement Agent)
who may be entitled to any commission or compensation in connection with the
sale to the Company of the Mortgages Loans.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling and
Servicing Agreement, the Seller and the Company shall be given notice of (A) any
breach of any representation or warranty contained in Section 2(b) (i), (ii),
(iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv), (xvi), (xvii),
(xviii), (xix), (xx), (xxiv), (xxv), (xxvii), (xxix), (xxxi) or (xxxv) and (B)
any breach of any representation or warranty contained in Section 2(b), (x),
(xiii), (xiv), (xxi), (xxii), (xxiii), (xxvi), (xxviii), (xxx), (xxxii),
(xxxiii), (xxxiv), (xxxvi), (xxxvii), (xxxviii) or (xxxix) that materially and
adversely affects the value of such Mortgage Loan or the interests of the
holders of the Certificates therein.
(b) Within 90 days of the receipt of the notice (or with respect to
the representation and warranty contained in Section 2(b)(xxx) or (xxxii),
discovery) of a breach provided for in clause (a), the Seller shall either (i)
repurchase the related Mortgage Loan or Anchorage Participation at the
Repurchase Price or (ii) promptly cure such breach in all material respects;
provided, however, that in the event that such breach (other than a breach of
Section 2(b)(xxx) or (xxxii)) is capable of being cured but not within such 90
day period and the Seller has commenced and is diligently proceeding with the
cure of such breach within such 90 day period, the Seller shall have an
additional 90 days to complete such cure, provided, further, that with respect
to such additional 90 day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth the reason such breach is not capable
of being cured within the initial 90 day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such breach will be cured within the additional 90 day period;
and provided, further, that in the event that the Seller fails to complete the
cure of such breach within such additional 90 day period, the Repurchase Price
shall also include interest at the Advance Rate on any Advance made by the
Servicer in respect of the related Mortgage Loan or the Anchorage Participation.
Upon any such repurchase of a Mortgage Loan or the Anchorage Participation by
Seller, the Company shall execute and deliver such instruments of transfer or
assignment presented to it by Seller, in each case without recourse, as shall be
necessary to vest in Seller the legal and beneficial ownership of such Mortgage
Loan or the Anchorage Participation (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto) and the rights
with respect thereto under the applicable Originator's Mortgage Loan Purchase
Agreement (including, without limitation, the rights and remedies with respect
to representations and warranties made by the Originator thereunder relating to
such Mortgage Loan), and shall deliver the related Mortgage File to Seller or
its designee after receipt of the related repurchase price.
(c) The Seller hereby acknowledges the assignment by the Company to
the Trustee, as trustee under the Pooling and Servicing Agreement, for the
benefit of the Holders of the Certificates, of the representations and
warranties contained herein and of the obligation of the Seller to repurchase a
Mortgage Loan or the Anchorage Participation pursuant to this Section. The
Trustee or its designee may enforce such obligation as provided in Section 8(b)
hereof.
4. Opinions of Counsel. The Seller hereby covenants to the Company to,
simultaneously with the execution hereof, deliver or cause to be delivered to
the Company opinions of counsel as to various corporate matters in form
satisfactory to the Company.
5. Underwriting. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or the Anchorage Participation, reasonably requested by the
Company in order to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement or the Purchase Agreement at or prior to the Closing Date.
6. Costs. The Company shall pay all expenses incidental to the performance
of its obligations under the Underwriting Agreement and the Purchase Agreement,
including without limitation (i) any recording fees or fees for title policy
endorsements and continuations, (ii) the expenses of preparing, printing and
reproducing the Prospectus Supplement, Private Placement Memorandum dated
October 22, 1996 relating to the Certificates, the Underwriting Agreement, the
Placement Agreement, the Pooling and Servicing Agreement and the Certificates
and (iii) the cost of delivering the Certificates to the office of the
Underwriter or the purchaser of the Certificates, as applicable, insured to the
satisfaction of the Underwriter or such purchaser, as applicable.
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 2 World Financial Center - Building B, New
York, New York 10281-1198 attention of Manager - Mortgage Finance Department,
or, if sent to the Seller, will be mailed, delivered or telegraphed and
confirmed to it at 2 World Financial Center - Building B, New York, New York
10281-1198 attention of Manager - Mortgage Finance Department.
8. Trustee Beneficiary. The representations, warranties and agreements made
by the Seller in this Agreement are made for the benefit of, and may be enforced
by or on behalf of, the Trustee and the Holders of Certificates to the same
extent that the Company has rights against the Seller under this Agreement in
respect of representations, warranties and agreements made by the Seller herein
and such representations and warranties shall survive delivery of the respective
Mortgage Files to the Trustee until the termination of the Pooling and Servicing
Agreement.
9. Miscellaneous. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought. This Agreement may not be changed in
any manner which would have a material adverse effect on Holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Section 10.07 of
the Pooling and Servicing Agreement. This Agreement may be executed in any
number of counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and no other person
will have any right or obligation hereunder, other than as provided in Section 8
hereof.
10. Third Party Beneficiary. Nomura Securities International, Inc. is an
intended third party beneficiary of the representations and warranties of the
Seller set forth in Article 2 hereof.
<PAGE>
IN WITNESS WHEREOF, the Company and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
ASSET SECURITIZATION CORPORATION
By:_______________________________
Name:
Title:
NOMURA ASSET CAPITAL CORPORATION
By: _______________________________
Name:
Title:
<PAGE>
EXHIBIT A
EXCEPTIONS TO THE MORTGAGE LOAN REPRESENTATIONS
(xii) The proceeds of the Anchorage Loan have not been fully
disbursed and the Seller is under an obligation to make a
future advance with respect to such loan in the event that
certain financial conditions are satisfied. The proceeds of
the Anchorage Loan with respect to the Anchorage
Participation have been fully disbursed and there is no
requirement for a future advance with respect thereto. The
Seller covenants that it will not make any future advances
with respect to the Anchorage Participation;
(xxxiv)(B)With respect to the ground lease covering the Mortgaged
Property known as Mariner's Village, the lessor under the
related ground lease is the City of Los Angeles and has not
agreed that the ground lease may only be amended, modified,
canceled or terminated with the prior written consent of
mortgagee. With respect to the ground lease covering the
Mortgaged Property known as Redondo Beach Best Western, the
lessor has not agreed that the ground lease may be
terminated only with the prior consent of mortgagee. With
respect to the ground lease covering the Mortgaged Property
known as Bolsa Marketplace, the lessor has not agreed that
the ground lease may be terminated only with the prior
consent of mortgagee. With respect to the ground lease
covering the Mortgaged Property known as 9300 Wilshire
Boulevard, the lessor has not agreed that the ground lease
may be terminated only with the prior consent of mortgagee;
(D) With respect to the ground lease covering the Mortgaged
Property known as Redondo Beach Best Western, the ground
lease does not provide that "it shall remain" prior to any
lien upon the fee interest. With respect to the ground lease
covering the Mortgaged Property known as Bolsa Marketplace,
the ground lease does not affirmatively provide that "it
shall remain" prior to any lien upon the fee interest. With
respect to the ground lease covering the Mortgaged Property
known as 9300 Wilshire Boulevard, the ground lease does not
provide that "it shall remain" prior to any lien upon the
fee interest;
(E) With respect to the ground lease covering the Mortgaged
Property known as Redondo Beach Best Western, any subsequent
transfer following foreclosure or transfer by deed in lieu
of foreclosure is subject to the prior consent of the
lessor, which consent will not be unreasonably withheld;
(I) With respect to the ground lease covering the Mortgaged
Property known as Mariner's Village, the ground lessor has
retained the right to approve subleases in excess of one
year;
(K) With respect to the ground lease covering the Mortgaged
Property known as Mariner's Village, under the terms of the
ground lease and the related Mortgage, any related insurance
proceeds, or condemnation award in respect of a total or
substantially total loss or taking of the related Mortgaged
Property will be applied first to the restoration of the
related Mortgaged Property and then to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest. With respect to the ground lease
covering the Mortgaged Property known as Redondo Beach Best
Western, under the terms of the ground lease and the related
Mortgage, any related insurance proceeds will be applied
first to the restoration of the related Mortgaged Property
and then to the payment of the outstanding principal balance
of the Mortgage Loan, together with any accrued interest.
With respect to the ground lease covering the Mortgaged
Property known as Bolsa Marketplace, under the terms of the
ground lease and the related Mortgage, any related insurance
proceeds, or condemnation award in respect of a partial
condemnation will be applied first to the restoration of the
related Mortgaged Property and then to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest. With respect to the ground lease
covering the Mortgaged Property known as 9300 Wilshire
Boulevard, under the terms of the ground lease and the
related Mortgage, any condemnation proceeds not applied to
the restoration of the Mortgaged Property are allocated as
follows: (i) first $1,000,000 to lessor; (ii) next, to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest; and (iii) balance
to lessor. Lessor has the right to terminate the ground
lease if 40% or more of the area of either the Mortgaged
Property or the first floor of the property is taken; and
(xxxvii) With respect to the Mortgage Loan known as the Pacific
Properties loan, the Seller has an option under the related
Mortgage to convert some or all of the related Mortgage Loan
into a "preferred equity" interest. As of the Closing Date
the Seller has irrevocably waived such right and the
Trustee, as successor to the Seller's rights under such
Mortgage, has been instructed to not exercise such
conversion right at any time.
