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: December 17, 1996
(Date of earliest event reported)
Asset Securitization Corporation
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(Exact name of registrant as specified in its charter)
Delaware 033-49370-02 13-3672337
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(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 December 17, 1996, Asset Securitization Corporation (the "Company")
caused the issuance, pursuant to a Pooling and Servicing Agreement dated as of
December 17, 1996 (the "Pooling and Servicing Agreement"), by and among the
Company, as depositor, AMRESCO Management, Inc., as servicer (the "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-MD VI (the
"Certificates"), issued in nineteen classes. The Class A-1A, Class A-1B, Class
A-1C, Class CS-1, Class CS-2, Class CS-3, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6 and Class A-7 Certificates (the "Publicly Offered Certificates")
were sold to Nomura Securities International, Inc. ("NSI") pursuant to an
Underwriting Agreement dated as of December 10, 1996, between the Company and
NSI, as underwriter. The Class B-1, Class B-1H, Class V-1, Class V-2 and Class R
Certificates (the "Privately Placed Certificates") were sold to NSI pursuant to
a Purchase Agreement dated December 17, 1996, between the Company and NSI, as
placement agent. The Publicly Offered Certificates had an aggregate principal
balance as of December 17, 1996 of $859,388,670 and the Privately Placed
Certificates had an aggregate principal balance as of December 17, 1996 of
$35,807,865.
In the aggregate, the Certificates represent the entire beneficial
ownership interests in a trust fund consisting of 5 commercial mortgage loans
and certain interest rate floor agreements obtained by ASC from Lehman Brothers
Financial Products, Inc.
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
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1 4.1 Pooling and Servicing Agreement,
dated as of December 17, 1996.
2 10.1 Mortgage Loan Purchase and Sale Agreement,
dated as of December 17, 1996.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
NOMURA ASSET SECURITIES
CORPORATION
By: /s/ Perry Gershon
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Perry Gershon
Vice President
Date: December 30, 1996
<PAGE>
EXHIBIT INDEX
Item 601(a) of
Regulation S-K
Exhibit No. Exhibit No. Description
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1 4.1 Pooling and Servicing Agreement,
dated as of December 17, 1996.
2 10.1 Mortgage Loan Purchase and Sale Agreement,
dated as of December 17, 1996.
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ASSET SECURITIZATION CORPORATION,
DEPOSITOR
AMRESCO MANAGEMENT, INC.,
SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
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POOLING AND SERVICING AGREEMENT
Dated as of December 17, 1996
------------------------------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1996-MD VI
================================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
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 and Upper-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; Certificate Distribution Account; Upper-Tier
Distribution Account; Lower-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 Interest Reserve Accounts and the Borrower 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 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; Inspections; Successor
Manager
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 Accounts
SECTION 3.28 Prime Retail Treasury Collateral Account
SECTION 3.29 Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Specific Mortgage Loans
SECTION 3.30 Residual Trigger Date
SECTION 3.31 Modifications
<PAGE>
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 4.06 Remittances; P&I Advances
SECTION 4.07 Grantor Trust Reporting
SECTION 4.08 Floor Agreement Administration
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 and the 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 or Special Servicer;
Termination of the Servicer or Special Servicer
SECTION 6.05 Rights of the Depositor and the Trustee in Respect of the
Servicer and 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 Not Liable for Certificates or Mortgage Loans
SECTION 8.04 Trustee May Own Certificates
SECTION 8.05 Payment of Trustee 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
<PAGE>
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 CS-1 Certificate
Exhibit A-5 Form of Class CS-2 Certificate
Exhibit A-6 Form of Class CS-3 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 A-6 Certificate
Exhibit A-12 Form of Class A-7 Certificate
Exhibit A-13 Form of Class P-IO Certificate
Exhibit A-14 Form of Class B-1 Certificate
Exhibit A-15 Form of Class B-1H 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
<PAGE>
Pooling and Servicing Agreement, dated as of December 17, 1996, among Asset
Securitization Corporation, as Depositor, AMRESCO Management, Inc., as 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 Floor Agreements, the Floor Interest Reserve Account, the
Lock-Box Accounts, Cash Collateral Accounts, Reserve Accounts, the Prime Retail
Treasury Collateral Account, 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-U, Class A-1B-U, Class A-1C-U,
Class P-IO-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U,
Class A-7-U, Class B-1-U and Class B-1H-U Interests and the Class A-1A-U, Class
A-1B-U, Class A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class
A-6-U and Class A-7-U Strip Components 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. All such Upper-Tier Regular Interests will be held by the Trustee as
assets of the Grantor Trust. 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 twelve 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-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class A-6-L, Class
A-7-L, Class P-IO-L, Class B-1-L and Class B-1H-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 assets of
the Grantor Trust, including the Upper-Tier Regular Interests, the Floor
Agreements, the Floor Interest Reserve Account, the Prime Retail Treasury
Collateral Account, 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 CS-1, Class CS-2 Class CS-3
and Class P-IO Certificates, Notional Balance) for each Class of Certificates
comprising interests in the Grantor Trust (other than the Class V-1 and Class
V-2 Certificates).
Class Certificate Balance or Notional Balance
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Class A-1A $ 94,311,998
Class A-1B $ 333,473,178
Class A-1C $ 171,996,502
Class CS-1(1) $ 94,311,998
Class CS-2(2) $ 333,473,178
Class CS-3(3) $ 431,603,494
Class P-IO $ 358,748,252
Class A-2 $ 35,807,861
Class A-3 $ 35,807,861
Class A-4 $ 44,759,826
Class A-5 $ 22,379,913
Class A-6 $ 49,235,809
Class A-7 $ 71,615,722
Class B-1 $ 35,806,865
Class B-1H $ 1,000
(1) The Class CS-1 Certificates are composed of one Strip Component (the Class
A-1A Strip Component) and represent beneficial interests in an Upper-Tier
Regular Interest (the Class A-1A-U Strip Component) and the corresponding Floor
Agreement. The Class A-1A Strip Component has an initial Notional Balance of
$94,311,998, which is equal to the initial Certificate Balance of the Class A-1A
Certificates.
(2) The Class CS-2 Certificates are composed of one Strip Component (the Class
A-1B Strip Component) and represent beneficial interests in one Upper-Tier
Regular Interest (the Class A-1B-U Strip Component) and the corresponding Floor
Agreement. The Class A-1B Strip Component has an initial Notional Balance of
$333,473,178, which is equal to the initial Certificate Balance of the Class
A-1B Certificates.
(3) The Class CS-3 Certificates are composed of seven Strip Components (the
Class A-1C, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and Class A-7
Strip Components) and represent beneficial interests in seven Upper-Tier Regular
Interests (the Class A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U,
Class A-6-U and Class A-7-U Strip Components) and the corresponding Floor
Agreements. The Class A-1C Strip Component has an initial Component Balance of
$171,996,502, which is equal to the initial Certificate Balance of the Class
A-1C Certificates. The Class A-2 Strip Component has an initial Component
Balance of $35,807,861, 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 $35,807,861, 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 $44,759,826, 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 $22,379,913, which is equal to the initial Certificate Balance of the
Class A-5 Certificates. The Class A-6 Strip Component has an initial Component
Balance of $49,235,809, which is equal to the initial Certificate Balance of the
Class A-6 Certificates. The Class A-7 Strip Component has an initial Component
Balance of $71,615,722, which is equal to the initial Certificate Balance of the
Class A-7 Certificates.
The initial Certificate Balance of each of the Class P-IO, Class V-1, Class
V-2, Class R and Class LR Certificates is zero. The initial Notional Balance of
the Class P-IO Certificates is approximately $358,748,252. Additionally, Class
V-1, Class V-2, Class R and Class LR Certificates do not have Notional Balances.
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 $895,196,535.
In consideration of the mutual agreements herein contained, the Depositor,
the 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.
"Adjusted Mortgage Pass-Through Rate": The Adjusted Mortgage Pass-Through
Rate with respect to the Prime Retail II Pool Loan and any Interest Accrual
Period beginning prior to the Prime Conversion Date (a) with respect to any such
Interest Accrual Period ending in any January, February, March, May, July,
October or December is equal to 7.264% and (b) with respect to any such Interest
Accrual Period ending in any April, June, August, September or November is equal
to 7.264% 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
Adjusted Mortgage Pass-Through Rate of the Prime Retail II Pool Loan and any
Interest Accrual Period beginning on or after the Prime Conversion Date will be
equal to the Mortgage Pass-Through Rate of the Prime Retail II Pool Loan.
"Adjusted Net Mortgage Pass-Through Rate": With respect to the Prime Retail
II Pool Loan and any Distribution Date, the per annum rate equal to the Adjusted
Mortgage Pass-Through Rate for such Mortgage Loan minus the Servicing Fee Rate
and the Trustee Fee Rate.
"Adjusted Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the amount (expressed as a
percentage) (a) the numerator of which is the sum of (i) the sum of the products
of (A) the Net Mortgage Pass-Through Rate with respect to each Mortgage Loan
(other than the Prime Retail II Pool Loan) and (B) the Stated Principal Balance
of each such Mortgage Loan and (ii) the product of (A) the Adjusted Net Mortgage
Pass-Through Rate of the Prime Retail II Pool Loan and (B) the Stated Principal
Balance of such Mortgage Loan and (b) the denominator of which is the sum of the
Stated Principal Balances of all Mortgage Loans, as of the Due Date occurring in
the month preceding the month in which such Distribution Date occurs.
"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) from
the amount of Default Interest paid by the Borrower and (ii) to the extent such
amounts are insufficient therefore, from amounts on deposit in the Collection
Account.
"Advance Rate": A per annum rate equal to the sum of (i) 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.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by 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 each Mortgage Loan, the date
on which the Mortgage Loan may first be voluntarily prepaid without premium.
"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.
"Applicable Procedures": As defined in Section 5.02(c).
"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 related 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 currently 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 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 independent MAI appraisal, the
costs of which shall be paid as a Property Advance. On the first Distribution
Date occurring on or after the delivery of such independent MAI 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)
90 days after the date on which a reduction in the amount of Monthly Payments on
the Mortgage Loan, or a change in any other material economic term of the
Mortgage Loan, becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) 60 days after a receiver has been appointed,
(v) immediately after a borrower declares bankruptcy and (vi) immediately after
a Mortgage Loan becomes an REO 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.
"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, Extended Monthly Payments or other receipts on
account of principal and interest (including Unscheduled Payments and any Net
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 amounts received by the
Servicer in respect of the Floor Agreements in the related Collection Period;
(iii) 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
(excluding Subordinate Class Advance Amounts) made by the Servicer, the Trustee
or the Fiscal Agent in respect of such Distribution Date, (iv) for the
Distribution Date occurring in each March, the Mortgage Withheld Amounts
remitted to the Lower-Tier Distribution Account pursuant to Section 3.27 and the
Floor Withheld Amounts remitted to the Certificate Distribution Account pursuant
to Section 3.27, (v) 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; (vi) any amounts required to be transferred
from the Prime Retail Treasury Collateral Account pursuant to Section 3.28; and
(vii) any Servicer Prepayment Interest Shortfalls remitted by the Servicer to
the Collection Account, but excluding the following:
(a) amounts permitted to be used to reimburse the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, for
previously unreimbursed Advances 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 and the applicable 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 (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees, which the Servicer or the Special
Servicer is entitled to retain as additional servicing compensation;
(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 or payable 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 and including any indemnities provided for
herein), including interest thereon as provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Certificate Distribution Account, the
Upper-Tier Distribution Account, the Lower-Tier Distribution Account,
the Default Interest Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Accounts, 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 Prime Retail II Pool Loan and any Distribution
Date relating to each Interest Accrual Period ending in each February
or any January in 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 Mortgage Interest Reserve
Account and held for future distribution pursuant to Section 3.27;
(i) with respect to the Floor Agreements and any Distribution Date
relating to each Interest Accrual Period ending in each February or
any January in a year which is not a leap year, an amount equal to one
day of interest on the notional balance of each Floor Agreement as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Floor Rate to the extent such
amounts are to be deposited in the Floor Interest Reserve Account and
held for future distribution pursuant to Section 3.27;
(j) 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 during the related Collection Period and subsequent to the
date as of which the amount required to effect such purchase or
repurchase was determined;
(k) 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;
(l) Prepayment Premiums;
(m) Default Interest;
(n) Excess Interest;
(o) any termination fee or any similar amount payable pursuant to the
Floor Agreements; and
(p) Class P-IO Available Funds.
"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 a 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 Mortgaged Property, 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 Originator. 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 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 Originator 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 CS-1, Class
CS-2, Class CS-3, Class P-IO, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class A-7, Class B-1, Class B-1H, 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 (other
than the Class CS-1, Class CS-2, Class CS-3, Class P-IO, Class V-1, Class V-2,
Class R and Class LR Certificates) (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, and (b) as of any date
of determination after the first Distribution Date, the Certificate Balance of
such Class of Certificates 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;
provided that for purposes of determining Voting Rights, the Certificate Balance
of the Class (other than the Class A-1A, Class A-1B and Class A-1C Certificates)
shall be deemed to have been reduced by the amount of Appraisal Reductions
allocated thereto pursuant to Section 4.01(m); provided further that no such
reduction shall apply to the Voting Rights of the Class CS-1, Class CS-2 or
Class CS-3 Certificates. With respect to any Class of Upper-Tier Regular
Interest (other than the Class A-1A-U, Class A-1B-U, Class A-1C-U, Class A-2-U,
Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and Class A-7-U Strip
Components and the Class P-IO-U Interest) an amount equal to the Certificate
Balance of the Related Certificates. With respect to any Class of Lower-Tier
Regular Interest, an amount 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 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-MD VI, Certificate Distribution Account"
and which must be an Eligible Account.
"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; provided, however, that, except to the extent provided in the next
proviso, solely 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, 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; provided, further, that (i) for purposes of
obtaining the consent of Certificateholders to an amendment of this 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,
provided, that, such amendment does not relate to compensation of the Servicer
or the Special Servicer or benefit 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 Certificate shall
be deemed not to be outstanding; and (ii) for purposes of obtaining the consent
of Certificateholders to any action proposed to be taken by the Special Servicer
with respect to a Specially Serviced Mortgage Loan, any Certificates
beneficially owned by the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, provided that the Special Servicer is not the
Servicer. For purposes of obtaining the consent of Certificateholders to any
action with respect to a particular Mortgage Loan proposed to be taken by the
Servicer or Special Servicer, any Certificates beneficially owned by the
Affiliates of the related Borrower, the related Manager, or Affiliates of the
related Manager shall not be deemed to be outstanding. Notwithstanding the
foregoing, solely 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, Upper-Tier Regular Interests or
Lower-Tier Regular Interests, all of the Certificates, Upper-Tier Regular
Interests 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 6.72%.
"Class A-1A Strip Component": The Strip Component of the Class CS-1
Certificates having an initial Component Balance equal to $94,311,998 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
Adjusted Weighted Average Net Mortgage Pass-Through Rate minus 6.72%.
"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-1A-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class A-1A-U Pass-Through Rate": A per annum rate equal to the lesser of
6.72% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class A-1A-U Interest": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1A-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01
having an initial Component Balance equal to $94,311,998 and bearing interest at
the Class A-1A-U Strip Pass-Through Rate.
"Class A-1A-U Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus the Class A-1A-U
Pass-Through Rate. Interest at the Class A-1A-U 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-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 6.88%.
"Class A-1B Strip Component": The Strip Component of the Class CS-2
Certificates having an initial Component Balance equal to $333,473,178 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
Adjusted Weighted Average Net Mortgage Pass-Through Rate minus 6.88%.
"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-1B-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class A-1B-U Pass-Through Rate": A per annum rate equal to the lesser of
6.88% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class A-1B-U Interest": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1B-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $333,473,178 and bearing interest
at the Class A-1B-U Strip Pass-Through Rate.
"Class A-1B-U Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus the Class A-1B-U
Pass-Through Rate. Interest at the Class A-1B-U 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-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 7.04%.
"Class A-1C Strip Component": A Strip Component of the Class CS-3
Certificates having an initial Component Balance equal to $171,996,502 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
Adjusted Weighted Average Net Mortgage Pass-Through Rate minus 7.04%.
"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-1C-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class A-1C-U Pass-Through Rate": A per annum rate equal to the lesser of
7.04% and the Weighted Average Net Mortgage Pass-Through Rate.
"Class A-1C-U Interest": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1C-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $171,996,502 and bearing interest
at the Class A-1C-U Strip Pass-Through Rate.
"Class A-1C-U Strip Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus the Class A-1C-U
Pass-Through Rate. Interest at the Class A-1C-U 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-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 Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 1.14%.
"Class A-2 Strip Component": A Strip Component of the Class CS-3
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 1.14%.
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-2-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class A-2-U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.14%.
"Class A-2-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01
having an initial Component Balance equal to $35,807,861 and bearing interest at
the Class A-2 Strip Pass-Through Rate.
"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 Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 1.09%.
"Class A-3 Strip Component": The Strip Component of the Class CS-3
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 1.09%.
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-3-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class A-3-U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.09%.
"Class A-3-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
Class A-3-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $35,807,861 and bearing interest at
the Class A-3 Strip Pass-Through Rate.
"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 Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 1.05%.
"Class A-4 Strip Component": The Strip Component of the Class CS-3
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 1.05%.
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-4-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Rate.
"Class A-4-U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.05%.
"Class A-4-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $44,759,826 and bearing interest at
the Class A-4 Strip Pass-Through Rate.
"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 Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 1.02%.
"Class A-5 Strip Component": The Strip Component of the Class CS-3
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 1.02%.
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 A-5-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Rate.
"Class A-5-U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.02%.
"Class A-5-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-5-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $22,379,913 and bearing interest at
the Class A-5 Strip Pass-Through Rate.
"Class A-6 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 A-6 Pass-Through Rate": A per annum rate equal to the Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 0.87%.
"Class A-6 Strip Component": A Strip Component of the Class CS-3
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-6 Certificates and bearing interest at the
Class A-6 Strip Pass-Through Rate.
"Class A-6 Strip Pass-Through Rate": A per annum rate equal to 0.87%.
Interest at the Class A-6 Strip Pass-Through Rate on the Certificate Balance of
the Class A-6-L Interest represents a "specified portion" of the interest
payments on the Class A-6-L Interest.
"Class A-6-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-6-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Rate.
"Class A-6-U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.87%.
"Class A-6-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-6-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $49,235,809 and bearing interest at
the Class A-6 Strip Pass-Through Rate.
"Class A-7 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 A-7 Pass-Through Rate": A per annum rate equal to the Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 0.49%.
"Class A-7 Strip Component": A Strip Component of the Class CS-3
Certificates having an initial Component Balance equal to the initial
Certificate Balance of the Class A-7 Certificates and bearing interest at the
Class A-7 Strip Pass-Through Rate.
"Class A-7 Strip Pass-Through Rate": A per annum rate equal to 0.49%.
Interest at the Class A-7 Strip Pass-Through Rate on the Certificate Balance of
the Class A-7-L Interest represents a "specified portion" of the interest
payments on the Class A-7-L Interest.
"Class A-7-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-7-L Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Rate.
"Class A-7-U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.49%.
"Class A-7-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-7-U Strip Component": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01,
having an initial Component Balance equal to $71,615,722 and bearing interest at
the Class A-7 Strip Pass-Through Rate.
"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-14 hereto.
"Class B-1 Pass-Through Rate": A per annum rate equal to the Adjusted
Weighted Average Net Mortgage Pass-Through Rate.
"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/U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-1-U Interest": A regular interest in the Upper-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class B-1H 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-1H Pass-Through Rate": A per annum rate equal to the Adjusted
Weighted Average Net Mortgage Pass-Through Rate.
"Class B-1H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-1H-L/U Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-1H-U Interest": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class CS-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-4 hereto. The Class
CS-1 Certificates represent a beneficial ownership interest in the Class A-1A-U
Strip Component and the related Floor Agreement.
"Class CS-1 Pass-Through Rate": A per annum rate equal to the Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 6.72%.
"Class CS-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-5 hereto. The Class
CS-2 Certificates represent a beneficial ownership interest in the Class A-1B-U
Strip Component and the related Floor Agreement.
"Class CS-2 Pass-Through Rate": A per annum rate equal to the Adjusted
Weighted Average Net Mortgage Pass-Through Rate minus 6.88%.
"Class CS-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-6 hereto. The Class
CS-3 Certificates represent a beneficial ownership interest in the Class A-1C-U,
Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and Class A-7-U
Strip Components and the related Floor Agreements.
"Class CS-3 Pass-Through Rate": A per annum rate equal to the weighted
average of the Class A-1C Strip Pass-Through Rate, Class A-2 Strip Pass-Through
Rate, Class A-3 Strip Pass-Through Rate, Class A-4 Strip Pass-Through Rate,
Class A-5 Strip Pass-Through Rate, Class A-6 Strip Pass-Through Rate and Class
A-7 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 Interest Distribution Amount": With respect to any Distribution Date
and any Class of Certificates other than the Class CS-1, Class CS-2, Class CS-3
and Class P-IO Certificates and any Class of Upper-Tier Regular, an amount equal
to the Interest Accrual Amount thereof; with respect to any Distribution Date
and the Class CS-1, Class CS-2 and Class CS-3 Certificates, an amount equal to
the sum of the Interest Accrual Amounts of the related Strip Components of each
such Class of Certificates.
"Class Interest Shortfall": On any Distribution Date for any Class of
Certificates (other than the Class P-IO Certificates), and/or related Strip
Component of such Class or Upper-Tier Regular Interest (other than the Class
P-IO-U Interest), as applicable, 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(c) or Section
4.01(e) on such Distribution Date (or to the Trustee in respect of the
Upper-Tier Regular Interests) 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 (or to the
Trustee) 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-19 hereto. The Class LR Certificates have no
Pass-Through Rate, Certificate Balance or Notional Balance.
"Class P-IO Available Funds": For a Distribution Date on or prior to the
Prime Conversion Date, the excess of (A) the sum of (i) all the portion of
previously undistributed Monthly Payments and Extended Monthly Payments or other
receipts on account of interest (including the interest portion, if any, of
Unscheduled Payments and any Net REO Proceeds transferred from an REO Account
pursuant to Section 3.17(b)) on or in respect of the Prime Retail II Pool Loan
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 or in respect of interest on the Prime Retail II Pool
Loan, and including the interest portion of all P&I Advances made by the
Servicer, the Trustee or the Fiscal Agent in respect of the Prime Retail II Pool
Loan and such Distribution Date, (iii) the interest portion of any late payments
of Monthly Payments in respect of the Prime Retail II Pool Loan received after
the end of the Collection Period relating to such Distribution Date but prior to
the related Servicer Remittance Date; (iv) any amounts required to be
transferred from the Prime Retail Treasury Collateral Account pursuant to
Section 3.28; and (v) any Servicer Prepayment Interest Shortfalls with respect
to the Prime Retail II Pool Loan remitted by the Servicer to the Collection
Account, but excluding the following, in each case on, with respect to or
allocable to the Prime Retail II Pool Loan:
(a) amounts permitted to be used to reimburse the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, for
previously unreimbursed Advances and interest thereon as described in
Section 3.06(ii) and (iii) (provided that the amount described in this
clause (a) shall be netted from Available Funds and from Class P-IO
Available Funds pro rata in accordance with such amounts as calculated
without reference to clause (a) of the definition thereof);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and the applicable 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 (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees, which the Servicer or the Special
Servicer is entitled to retain as additional servicing compensation;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance Proceeds
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 (including, without
limitation, as provided in Section 3.06 and any indemnities to which
the Servicer or Trustee may be entitled pursuant to the specific terms
of this Agreement), including interest thereon as provided in this
Agreement (provided that the amount described in this clause (f) shall
be netted first from Available Funds pursuant to clause (f) of the
definition thereof);
(g) all amounts received with respect to the Prime Retail II Pool Loan if
the Prime Retail II Pool Loan has been previously purchased or
repurchased pursuant to Sections 2.03(d), 2.03(e), 3.18 or 9.01 during
the related Collection Period and subsequent to the date as of which
the amount required to effect such purchase or repurchase was
determined;
(h) 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 (provided that the amount described
in this clause (h) shall be netted first from Available Funds pursuant
to clause (k) of the definition thereof);
(i) Prepayment Premiums on the Prime Retail II Pool Loan;
(j) Default Interest on the Prime Retail II Pool Loan; and
(k) Excess Interest on the Prime Retail II Pool Loan.
over (B) interest accrued on the Prime Retail II Pool Loan at the Adjusted
Mortgage Pass-Through Rate thereof minus any Prepayment Interest Shortfalls
related to the Prime Retail II Pool Loan. On any Distribution Date subsequent to
the Prime Conversion Date, Class P-IO Available Funds will equal $0.
"Class P-IO 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. The Class
P-IO Certificate will be retired on the Distribution Date following the Prime
Conversion Date.
"Class P-IO-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
The Class P-IO-L Interest will be retired on the Distribution Date following the
Prime Conversion Date.
"Class P-IO-U Interest": A regular interest in the Upper-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01. The
Class P-IO-U Interest will be retired on the Distribution Date following the
Prime Conversion Date.
"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-18 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": On or about December 17, 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.
"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-MD VI, Collection Account" and which must be an
Eligible Account.
"Collection Period": With respect to a Distribution Date and each Mortgage
Loan, 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 January 1997, on the Cut-off Date) and ending on
the Due Date in the month in which such Distribution Date occurs.
"Columbia Sussex II Pool Loan": The Mortgage Loan identified as No. [ ] on
the Mortgage Loan Schedule.
"Commission": The Securities and Exchange Commission.
"Component Balance": In the case of (i) the Class A-1A-L, Class A-1B-L,
Class A-1C-L, Class A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class A-6-L
and Class A-7-L Interests and (ii) the Class A-1A-U, Class A-1B-U, Class A-1C-U,
Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and A-7-U Strip
Components, the Component Balance of the Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and Class A-7 Strip
Components, respectively. With respect to the Strip Components (a) on or prior
to the first Distribution Date, an amount equal to $94,311,998, in the case of
the Class A-1A Strip Component, $333,473,178, in the case of the Class A-1B
Strip Component, $171,996,502, in the case of the Class A-1C Strip Component,
$35,807,861, in the case of the Class A-2 Strip Component, $35,807,861, in the
case of the Class A-3 Strip Component, $44,759,826, in the case of the Class A-4
Strip Component, $22,379,913, in the case of the Class A-5 Strip Component,
$49,235,809, in the case of the Class A-6 Strip Component, and $71,615,722, in
the case of the Class A-7 Strip Component, and (b) as of the date of
determination after the first Distribution Date, the Component Balance of such
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 made on such prior Distribution Date allocable to principal
and Realized Losses allocated in reduction of the Certificate Balance of the
Related Certificates and (ii) (other than in the case of the Class A-1A, Class
A-1B and Class A-1C Strip Components) the allocation to such Strip Component of
Appraisal Reduction Amounts and Delinquency Reduction Amounts.
"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 A1-B and
Class A-1C Certificates has 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": December 17, 1996.
"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(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-MD VI, 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, 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 (or portion thereof) 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.
"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 Class": As defined in Section 3.31.
"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 or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance 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, or 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 CS-1, Class
CS-2 and Class CS-3 Certificates, the weighted average life of the interest
payments) of such class (rounded to the nearest month), without taking into
account the related prepayment.
"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 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 January 1997; 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 and, 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. The Distribution Date occurring in January 1997 shall be January
15, 1997.
"Due Date": With respect to any Distribution Date and/or any Mortgage Loan,
as the case may be, the eleventh day of the month in which such Distribution
Date falls.
"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 short term unsecured debt
obligations or commercial paper of which are rated at least A-1 by S&P, P-1 by
Moody's and F-1 by Fitch in the case of accounts in which funds are held for 30
days or less (or, in the case of accounts in which funds are held for more than
30 days, the long term unsecured debt obligations of which are rated at least
"AA" by Fitch and S&P and "Aaa" 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 any other account
that, as evidenced by a written confirmation from each Rating Agency, would not,
in and of itself, cause a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates, 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 Originator in connection
with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"ERISA Legend": A legend substantially in the form of the following:
This Certificate may 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 ERISA, the Code, or any
Similar Law (each as defined herein) (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.
"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 Mortgage Loan, interest accrued on
such Mortgage Loan allocable to the Excess Rate. The Excess Interest shall not
be an asset of 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(f), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996-MD VI, 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 Mortgage Loan, the difference between
(i) the applicable Revised Mortgage Rate and (ii) the applicable Mortgage Rate,
each as set forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Extended Monthly Payment": With respect to any extension of a Mortgage
Loan as to which any principal balance and accrued interest remains unpaid on
its maturity date (such unpaid amount, a "Balance"), an amount equal to (a) a
deemed principal portion of a revised monthly payment (which will be calculated
based on an amortization schedule which would fully amortize the applicable
Balance over a term of no more than 24 months (commencing on the maturity date
of such Mortgage Loan) and an interest rate no less than the Mortgage Rate with
respect to such Mortgage Loan), and (b) interest at the applicable Default Rate;
provided, however, that the Special Servicer may agree that the Extended 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").
"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
Originator 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., a Netherlands banking corporation, 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.
"Fixed Voting Rights": As defined in the definition of "Voting Rights."
"Floor Agreement": Each of the 19 Interest Rate Floor Agreements between
the Trustee, as successor to the Depositor, and the Floor Counterparty, which
were assigned to the Trustee pursuant to Section 2.01 hereof, and as further
identified in Section 4.08(a).
"Floor Counterparty": Lehman Brothers Financial Products, Inc., Delaware
corporation, or any successor thereto under the Floor Agreements or any
substitute floor agreements.
"Floor Counterparty Default": An "Event of Default" or "Termination Event"
with respect to the Floor Counterparty, as such terms are defined in each Floor
Agreement.
"Floor Interest Reserve Account": The trust account created and maintained
by the Servicer pursuant to Section 3.27(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-MD VI,
Floor Interest Reserve Account" and which shall be an Eligible Account.
"Floor Rate": The rate of interest calculated for each Interest Accrual
Period payable on the notional balance of each Floor Agreement pursuant to the
terms thereof.
"Floor Withheld Amounts": As defined in Section 3.27(b).
"Floor Termination Payment": Any amount payable by the Floor Counterparty
as a result of a Floor Counterparty Default under a Floor Agreement.
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"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.
"Global Certificates": The Class A-1A, Class A-1B, Class A-1C, Class CS-1,
Class CS-2, Class CS-3, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7 and Class B-1 Certificates.
"Grantor Trust": A segregated asset pool within the Trust Fund consisting
of the Upper-Tier Regular Interests, the Floor Agreements, the Floor Interest
Reserve Account, the Prime Retail Treasury Collateral Account, Default Interest,
Excess Interest and amounts held from time to time in the Certificate
Distribution Account, the Default Interest Distribution Account and the Excess
Interest Distribution Account.
"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.
"HGI II Pool Loan": The Mortgage Loan identified as No. --- on the Mortgage
Loan Schedule.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest or Upper-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 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
form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"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 or Upper-Tier Regular Interests (other than the Class
CS-1, Class CS-2, Class CS-3, Class P-IO, Class V-1, Class V-2, Class R and
Class LR Certificates and Class A-1A-U, Class A-1B-U, Class A-1C-U, Class A-2-U,
Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and Class A-7-U Strip
Components and Class P-IO-U Interest), 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 or reductions in Certificate
Balance as a result of allocations of Realized Losses on the Distribution Date
occurring in an Interest Accrual Period 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 Class A-1C Strip Components and
the Class A-1A-U, Class A-1B-U and Class A-1C-U 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 any reductions in Component
Balances of the Class A-1A, Class A-1B and Class A-1C Strip Components and the
Class A-1A-U, Class A-1B-U and Class A-1C-U Strip Components as a result of
distributions in reduction of the Certificate Balances of the Class A-1A, Class
A-1B and Class A-1C Certificates or allocations of Realized Losses to the
Certificate Balance of the Class A-1A, Class A-1B and Class A-1C Certificates,
on the Distribution Date occurring in an Interest Accrual Period, 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-2, Class A-3, Class A-4, Class
A-5, Class A-6 and Class A-7 Strip Components and the Class A-2-U, Class A-3-U,
Class A-4-U, Class A-5-U, Class A-6-U and Class A-7-U 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, (B) allocations of Realized Losses to the
Certificate Balance of the related Class of Certificates or (C) allocations of
Appraisal Reduction Amounts or Delinquency Reduction Amounts to the Certificate
Balance of the related Class of Certificates or (ii) any increases in Component
Balance as a result of reversals or reductions resulting from Appraisal
Reduction Events and Delinquencies, in each case, on the Distribution Date
occurring in such Interest Accrual Period 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, any distributions in reduction of
Certificate Balance, reductions of Certificate Balance as a result of
allocations of Realized Losses on the Distribution Date and allocations of
Appraisal Reduction Amounts or Delinquency Reduction Amounts occurring in such
Interest Accrual Period shall be deemed to have been made as of the first day of
such Interest Accrual Period.
"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 first Interest Accrual
Period shall commence on the Cut-off Date and end on January 10, 1997. Interest
for each Interest Accrual Period, other than the Interest Accrual Period with
respect to the Distribution Date occurring in January 1997, 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 January 1997 shall be
assumed to consist of 24 days.
"Interest Rate Cap Agreement": Those certain interest rate cap agreements
entered into by the Borrowers with respect to the Prime Retail II Pool Loan with
SBCM Derivative Products Limited and Morgan Guaranty Trust Company of New York.
"Interest Reserve Accounts": The Floor Interest Reserve Account and the
Mortgage Interest Reserve Account.
"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
direct the Trustee 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 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-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(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-MD VI, Lower-Tier Distribution Account"
and which must be an Eligible Account.
"Lower-Tier Pass-Through Rate": With respect to any Distribution Date and
any Class of Lower-Tier Regular Interests (other than the Class P-IO-L
Interest), 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-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class A-6-L, Class
A-7-L, Class P-IO-L, Class B-1-L and Class B-1H-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
all proceeds of such REO Property and amounts held from time to time in the
Collection Account, the Mortgage Interest Reserve Account and the Lower-Tier
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.
"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.
"MHP II Pool Loan": The Mortgage Loan identified as No. [ ] on the Mortgage
Loan Schedule.
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal and
interest at the Mortgage Pass-Through Rate (in the case of the Prime Retail II
Pool Loan, without regard to the maximum rate recited in the definition
thereof), which is payable by the related Borrower on such Due Date under the
related Note or Notes. 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 Services, 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 (xvi) 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 Interest Reserve Account": The trust account created and
maintained by the Servicer pursuant to Section 3.27(a), which shall be entitled
"LaSalle National Bank, as Trustee, in trust for Holders of Asset Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1996-MD VI,
Mortgage Interest Reserve Account" and which shall be an Eligible Account.
"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
any REO Mortgage Loan or defeased Mortgage Loan.
"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 Originator, 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 Monthly Payment in effect as of the Cut-off Date;
(b) the Mortgage Rate;
(c) the Maturity Date;
(d) the Stated Principal Balance as of the Cut-off Date; and
(e) the name of the Manager for the related Mortgaged Properties.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (a) and (d) above for all of the Mortgage Loans.
"Mortgage Pass-Through Rate": The Mortgage Pass-Through Rate with respect
to the Mortgage Loans (other than the Prime Retail II Pool Loan), for any
Interest Accrual Period (other than the Interest Accrual Period relating to the
Distribution Date occurring in January 1997), is a per annum rate 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 Loans
(other than the Prime Retail II Pool Loan) and the Interest Accrual Period
relating to the Distribution Date occurring in January 1997 will be the Mortgage
Rates thereof. The Mortgage Pass-Through Rate with respect to the Prime Retail
II Pool Loan and any Interest Accrual Period (a) ending in any February, March,
May, July, October or December or in any January occurring in a year which is
not a leap year, is equal to the Mortgage Rate thereof and (b) ending in any
April, June, August, September or November or in any January occurring in 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; provided, however, that in no
event will the Mortgage Pass-Through Rate with respect to the Prime Retail II
Pool Loan and any Interest Accrual Period beginning prior to the Prime
Conversion Date exceed 7.264% 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.
"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 and the Adjusted Weighted Average Net Mortgage Pass-Through
Rate will 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 pursuant to Section
3.31.
"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 a
fee simple 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.
"Mortgage Withheld Amounts": As defined in Section 3.27(a).
"Net Default Interest": As defined in Section 3.05(e).
"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 Servicing Fee Rate and the 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, 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 conducted by an MAI appraiser in
accordance with MAI standards or any Updated Appraisal thereof conducted within
the past 12 months; copies of such documents to be included with the certificate
of a Responsible Officer). Any determination of non-recoverability made by the
Servicer may be made without regard to any value determination made by the
Special Servicer other than pursuant to an Updated Appraisal. 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 Balance": With respect to each of the Class CS-1, Class CS-2 and
Class CS-3 Certificates, (a) on or prior to the Distribution Date occurring in
January 1997, 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 after January 1997, the
Notional Balance of such Class on the Distribution Date immediately prior to
such date of determination, after application of the distributions and Realized
Losses allocable to principal made on the Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and Class A-7
Certificates, respectively, on such prior Distribution Date. The Notional
Balance of the Class P-IO Certificates on any Distribution Date will equal the
Stated Principal Balance of the Prime Retail II Pool Loan as of the preceding
Due Date. The Notional Balance of the Class CS-1 Certificates will at all times
equal the Component Balance of the Class A-1A Strip Component; the Notional
Balance of the Class CS-2 Certificates will at all times equal the Component
Balance of the Class A-1B Strip Component; the Notional Balance of the Class
CS-3 Certificates is equal to the sum of the Component Balances of the Class
A-1C Strip Component, Class A-2 Strip Component, Class A-3 Strip Component,
Class A-4 Strip Component, Class A-5 Strip Component, the Class A-6 Strip
Component and the Class A-7 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"), (c)
qualification of the Grantor Trust as a grantor trust or (d) 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.
"Originator": Nomura Asset Capital Corporation, a Delaware corporation, and
its successors in interest.
"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 and without duplication, payment or reimbursement
of interest thereon at the Advance Rate through the date of payment or
reimbursement.
"Palmer Square Pool Loan": The Mortgage Loan identified as No. [ ] on the
Mortgage Loan Schedule.
"Pass-Through Rate": With respect to each Class of Certificates (other than
the Class P-IO, Class V-1, Class V-2, Class R and Class LR Certificates), Strip
Component of a Class of Certificates or Upper-Tier Regular Interests, the
Pass-Through Rate for such Class, Strip Component or Upper-Tier Regular
Interests are set forth below:
Class/Strip Component/
Upper-Tier Regular Interest 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 CS-1 Class CS-1 Pass-Through Rate
Class CS-2 Class CS-2 Pass-Through Rate
Class CS-3 Class CS-3 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 A-6 Class A-6 Pass-Through Rate
Class A-7 Class A-7 Pass-Through Rate
Class B-1 Class B-1 Pass-Through Rate
Class B-1H Class B-1H Pass-Through Rate
Class A-1A Strip Component Class A-1A Strip Pass-Through Rate
Class A-1A-U Strip Component Class A-1A-U Strip Pass-Through Rate
Class A-1B Strip Component Class A-1B Strip Pass-Through Rate
Class A-1B-U Strip Component Class A-1B-U Strip Pass-Through Rate
Class A-1C Strip Component Class A-1C Strip Pass-Through Rate
Class A-1C-U Strip Component Class A-1C-U Strip Pass-Through Rate
Class A-2 Strip Component Class A-2 Strip Pass-Through Rate
Class A-2-U Strip Component Class A-2 Strip Pass-Through Rate
Class A-3 Strip Component Class A-3 Strip Pass-Through Rate
Class A-3-U Strip Component Class A-3 Strip Pass-Through Rate
Class A-4 Strip Component Class A-4 Strip Pass-Through Rate
Class A-4-U Strip Component Class A-4 Strip Pass-Through Rate
Class A-5 Strip Component Class A-5 Strip Pass-Through Rate
Class A-5-U Strip Component Class A-5 Strip Pass-Through Rate
Class A-6 Strip Component Class A-6 Strip Pass-Through Rate
Class A-6-U Strip Component Class A-6 Strip Pass-Through Rate
Class A-7 Strip Component Class A-7 Strip Pass-Through Rate
Class A-7-U Strip Component Class A-7 Strip Pass-Through Rate
Class A-1A-U Interest Class A-1A-U Pass-Through Rate
Class A-1B-U Interest Class A-1B-U Pass-Through Rate
Class A-1C-U Interest Class A-1C-U Pass-Through Rate
Class A-2-U Interest Class A-2-U Pass-Through Rate
Class A-3-U Interest Class A-3-U Pass-Through Rate
Class A-4-U Interest Class A-4-U Pass-Through Rate
Class A-5-U Interest Class A-5-U Pass-Through Rate
Class A-6-U Interest Class A-6-U Pass-Through Rate
Class A-7-U Interest Class A-7-U Pass-Through Rate
Class B-1-U Interest Class B-1-L/U Pass-Through Rate
Class B-1H-U Interest Class B-1H-L/U 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 P-IO, 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 P-IO, 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); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate
of interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately with
that index, and (D) such investments must not be subject to
liquidation prior to their maturity;
(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);
provided, however, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if rated by S&P, must not have an "r"
highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(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 Moody's or Fitch,
otherwise acceptable to 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); provided, however, that the investments
described in this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating, (C) if
such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(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 Moody's or Fitch, otherwise acceptable to 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); provided,
however, that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate
of interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately with
that index, and (D) such investments must not be subject to
liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days rated by
each Rating Agency (or, if not rated by Moody's or Fitch, otherwise
acceptance to 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; provided, however, that the investments described in
this clause must (A) have a predetermined fixed dollar of principal
due at maturity that cannot vary or change, (B) if rated by S&P, must
not have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(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 Moody's or Fitch, otherwise
acceptable to 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; provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if rated by S&P, must not
have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(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 ratings category (or, if not rated by
Moody's or Fitch, otherwise acceptable to 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 all of the Mortgage Loans
prepay on their respective Anticipated Repayment Dates.
"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 plus the Trustee Fee Rate) resulting from a
Principal Prepayment on such Mortgage Loan during the related Collection Period
and prior to the related Due Date other than Servicer Prepayment Interest
Shortfalls.
"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.
"Prime Conversion Date": The date on which the Mortgage Rate of the Prime
Retail II Pool Loan converts to a fixed interest rate, whether resulting from a
default thereunder or the passage of time.
"Prime Interest Reserve Deposit": As defined in Section 3.27.
"Prime Retail II Pool Loan": The Mortgage Loan identified as No. [ ] on the
Mortgage Loan Schedule (including any rights of the lender thereunder to receive
payments under the Interest Rate Cap Agreements).
"Prime Retail Expansion Debt Service": As of any Distribution Date, an
amount equal to interest on the Prime Retail Expansion Principal Balance for the
related Interest Accrual Period at a per annum interest rate equal to the lesser
of (a) the then-current Mortgage Rate of the Prime Retail II Pool Loan and (b)
8.51%.
"Prime Retail Expansion Principal Balance": As of any Distribution Date, an
amount equal to 11.1420613% of the Stated Principal Balance of the Prime Retail
II Pool Loan.
"Prime Retail Treasury Collateral Account": As defined in Section 3.28.
"Prime Retail Treasuries": As defined in Section 3.28.
"Prime Retail Treasury Required Amount": As of the first Distribution Date,
$13,064,000. As of any Distribution Date following the first Distribution Date,
the sum of interest that will accrue on the Prime Retail Expansion Principal
Balance (assuming that no prepayments on the Prime Retail II Pool Loan occur
following such Distribution Date) in each Interest Accrual Period following the
Interest Accrual Period related to such Distribution Date through the
Distribution Date occurring in December 2000, at an assumed interest rate of
8.51% per annum until the Distribution Date in December 1998 and 7.782% per
annum thereafter.
"Principal Distribution Amount": For any Distribution Date will be equal to
the sum of:
(i) the principal component of all scheduled Monthly Payments which become
due (if received or advanced, including by virtue of a Subordinate Class Advance
Amount) on the Mortgage Loans on the related Due Date;
(ii)the principal component of all Extended Monthly Payments due (if
received or advanced, including by virtue of a Subordinate Class Advance Amount)
on the related Due Date;
(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) to the extent not included in previous 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 Net Insurance Proceeds,
Net Liquidation Proceeds and Net REO Proceeds.
Amounts received on a Mortgage Loan which represent recoveries in respect
of any Subordinate Class Advance Amount shall not be included in the calculation
of Principal Distribution Amount. The principal component of the amounts set
forth above shall be determined in accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a 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 B-1 Certificates so
long as any 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, preserve and
enforce 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(f),
3.10(g), 3.10(i), 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 CS-1, Class CS-2, Class CS-3, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6 and Class A-7 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 S&P and Fitch (and, if such company is not rated by Fitch, is rated
A-IX by A.M. Best's Key Rating Guide) and "Baa3" or better by Moody's, (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 S&P and Fitch (and, if such company is
not rated by Fitch, is rated A-IX by A.M. Best's Key Rating Guide) 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 (and if such company is
not rated by Fitch, is rated A-VIII by A.M. Best's Key Rating Guide) no lower
than two ratings categories (without regard to pluses or minuses) lower than the
highest rating of any outstanding Class of Certificates from time to time, but
in no event lower than "BBB" by S&P and Fitch 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, 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": November 13, 2029.
"Rating Agency": Any of Moody's, Fitch or S&P. References herein to the
highest long-term unsecured debt rating category of S&P and Fitch shall mean
"AAA" and of Moody's shall mean "Aaa" 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 as of the Due Date 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 and the Class A-1A-U, Class A-1B-U and Class A-1C-U 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(k).
"Reduction Interest Shortfalls": 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 and the Class A-1A-U, Class A-1B-U and Class A-1C-U Strip Components)
any shortfall in the amount of Reduction Interest Distribution Amounts required
to be distributed to the Class CS-3 Certificates with respect to such Strip
Component on such Distribution Date.
"Regular Certificates": The Class A-1A, Class A-1B, Class A-1C, Class CS-1,
Class CS-2, Class CS-3, Class P-IO, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7, Class B-1 and Class B-1H 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 a Regulation S
Global Certificate, a transferee that acquires such Certificate pursuant to
Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in the
form of Exhibit H hereto.
"Related Certificate," "Related Lower-Tier Regular Interest," "Related
Upper-Tier Regular Interest" and "Related Component": For any Class of
Lower-Tier Regular Interest, the related Class of Upper-Tier Regular Interest,
the related Certificates and the related Component set forth below; for any
Class of Upper-Tier Regular Interest, the related Class of Lower-Tier Regular
Interest, the related Class of Certificates and the Related Component set forth
below; and for any Class of Certificates, the related Class of Lower-Tier
Regular Interest, the related Class of Upper-Tier Regular Interest and the
Related Component set forth below:
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Related Upper-Tier Related Lower-Tier
Related Certificate Regular Interest Regular Interest Related Component
- ------------------- ---------------- ---------------- -----------------
Class A-1A Class A-1A-U Class A-1A-L Class A-1A Strip Component
Class A-1B Class A-1B-U Class A-1B-L Class A-1B Strip Component
Class A-1C Class A-1C-U Class A-1C-L Class A-1C Strip Component
Class A-2 Class A-2-U Class A-2-L Class A-2 Strip Component
Class A-3 Class A-3-U Class A-3-L Class A-3 Strip Component
Class A-4 Class A-4-U Class A-4-L Class A-4 Strip Component
Class A-5 Class A-5-U Class A-5-L Class A-5 Strip Component
Class A-6 Class A-6-U Class A-6-L Class A-6 Strip Component
Class A-7 Class A-7-U Class A-7-L Class A-7 Strip Component
Class B-1 Class B-1-U Class B-1-L N/A
Class B-1H Class B-1H-U Class B-1H-L N/A
</TABLE>
"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 Disposition Fee": With respect to any REO Property which is sold or
transferred or otherwise liquidated, an amount equal to 1% of the amount equal
to (a) the Liquidation Proceeds of such REO Property minus (b) any broker's
commission and related brokerage referral fees.
"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 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), any 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 the 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. To the extent not inconsistent with the related Mortgage Loan, each such
Reserve Account shall be an Eligible Account.
"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 Mortgage Rate": With respect to any Mortgage Loan, the Revised
Mortgage Rate on each such Mortgage Loan (in the absence of a default), as set
forth on the Mortgage Loan Schedule.
"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.
"S&P": Standard & Poor's Ratings Services, or its successor in interest.
"Scheduled Final Distribution Date": November 13, 2026.
"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 Distribution
Date, the amount of any shortfall in collections of interest (adjusted to the
applicable Net Mortgage Pass-Through Rate plus the Trustee Fee Rate) resulting
from a Principal Prepayment on such Mortgage Loan during the related Collection
Period and prior to the related Due Date, which Principal Prepayment, pursuant
to the terms of the related Mortgage Loan, was not permitted to be made on any
date other than a Due Date under such Mortgage Loan, but was nonetheless
accepted by the Servicer; provided, however, that the aggregate amount of the
Servicer Prepayment Interest Shortfall with respect to any Interest Accrual
Period shall not exceed the amount of the Servicing Fee with respect to such
Interest Accrual Period.
"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 and containing such additional
information as the Servicer and the Trustee may from time to time agree.
"Servicer's Appraisal Estimate": As defined in the definition of Appraisal
Reduction Amount.
"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 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 0.040% 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
sub-servicer or any Affiliate of the Servicer, the Special Servicer or
any sub-servicer may have with any Borrower or any other parties to
the Pooling and Servicing Agreement;
(ii) the ownership of any Certificate by the Servicer, the Special Servicer
or any Affiliate of the Servicer or Special Servicer, as applicable;
(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,
the Special Servicer or any sub-servicer, of any other mortgage loans
or properties.
"Special Servicer": The Servicer, in such capacity, or its successor in
interest, or any successor Special Servicer appointed as provided in Section
3.25. In the event that 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 Special Servicing Fee, Special Servicing Rehabilitation Fee, REO Disposition
Fee and REO Management 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 calendar month 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 in
the month preceding the month in which such Distribution Date occurs.
"Special Servicing Fee Rate": A rate equal to 0.50% per annum (except that
if the Special Servicer is, or is an Affiliate of, the Holder or Holders of
Certificates, representing greater than 51% of the Voting Rights of the most
subordinate Class of Certificates then outstanding (provided, however, that for
purposes of determining the most subordinate class, the Class B-1 and Class B-1H
Certificates together shall be collectively treated as one class and the Class
A-1A, Class A-1B, Class A-1C, Class CS-1, Class CS-2 and Class CS-3 Certificates
together shall be collectively treated as one class), the Special Servicer shall
provide written notice thereof to the Servicer and the rate shall equal 0.25%
per annum).
"Special Servicing Period": Any Interest Accrual Period during which a
Mortgage Loan is at any time a Specially Serviced Mortgage Loan.
"Special Servicing Rehabilitation Fee": As to any Mortgage Loan that has
been a Specially Serviced Mortgage Loan, on the occasion that such Mortgage Loan
has not been a Specially Serviced Mortgage Loan for nine consecutive Collection
Periods (or 12 consecutive Collection Periods in the case of any Mortgage Loan
which became a Specially Serviced Mortgage Loan as a result of circumstances
described in clauses (iii) through (vii) of the definition thereof), an amount
equal to 0.25% of the highest Stated Principal Balance while it was a Specially
Serviced Mortgage Loan of such Mortgage Loan at the time of determination;
provided, however, that such Special Servicing Rehabilitation Fee shall be due
only once for each Mortgage Loan during the term hereof.
"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
(and has not cured at least one such delinquency by the next due date
under the related Mortgage Loan);
(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 under which 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; or
(viii) 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) or (ii)
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);
(b) 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
(c) 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 CS-1......................................1.75%
Class CS-2......................................1.60%
Class CS-3......................................2.10%
Class A-1A......................................0.45%
Class A-1B......................................0.64%
Class A-1C......................................0.74%
"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) and (ii) all voluntary
and involuntary principal prepayments and other unscheduled collections of
principal received with respect to such Mortgage Loan. The Stated Principal
Balance of a Mortgage Loan with respect to which title to the related Mortgaged
Property has been acquired by the Trust Fund 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
has made a Final Recovery Determination is zero.
"Strip Component" or "Component": With respect to the Class CS-1
Certificates, the Class A-1A Strip Component. With respect to the Class CS-2
Certificates, the Class A-1B Strip Component. With respect to the Class CS-3
Certificates, the Class A-1C Strip Component, Class A-2 Strip Component, Class
A-3 Strip Component, Class A-4 Strip Component, Class A-5 Strip Component, the
Class A-6 Strip Component and the Class A-7 Strip Component. With respect to the
Upper-Tier REMIC, the Class A-1A-U Strip Component, the Class A-1B-U Strip
Component and the Class A-1C-U Strip Component, the Class A-2-U Strip Component,
the Class A-3-U Strip Component, the Class A-4-U Strip Component, the Class
A-5-U Strip Component, the Class A-6-U Strip Component and the Class A-7-U Strip
Component.
"Subordinate Class Advance Amount": As defined in Section 4.06(d).
"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).
"Transferor Letter": As defined in Section 5.02(l).
"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 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 Prime
Retail Treasury Collateral Account, the Collection Account, the Certificate
Distribution Account, Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Mortgage
Interest Reserve Account, the Floor 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; (xi)
the Floor Agreements; and (xii) 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, a nationally chartered 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.
"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-MD V, Upper-Tier Distribution Account"
and which must be an Eligible Account.
"Upper-Tier Regular Interests": The Class A-1A-U, Class A-1B-U, Class
A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U, Class
A-7-U, Class P-IO-U, Class B-1-U and Class B-1H-U Interests and the Class
A-1A-U, Class A-1B-U, Class A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class
A-5-U, Class A-6-U and Class A-7-U Strip Components.
"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) 0.25% in the case of the Class CS-1
Certificates, 1.00% in the case of the Class CS-2 Certificates 2.00% in the case
of the Class CS-3 Certificates and 0% in the case of the Class P-IO Certificates
(the sum of such percentages for each such class outstanding is the "Fixed
Voting Rights Percentage"); provided that the Voting Rights of each of the Class
CS-1, Class CS-2 and Class CS-3 Certificates will be reduced to zero upon the
reduction of the Notional Balance of each such class to zero, (c) in the case of
any of the Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6 and Class A-7 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
and (d) in the case of any of the Class B-1 and Class B-1H Certificates, a
percentage equal to (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 such class and the denominator of which is equal to the
aggregate outstanding Certificate Balances of all classes of Certificates. 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 CS-1, Class CS-2 and Class CS-3 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, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum of the products of (i) the Net
Mortgage Pass-Through Rate of each Mortgage Loan and (ii) the Stated Principal
Balance of such 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.
"Withheld Amounts": Floor Withheld Amounts or Mortgage Withheld Amounts.
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 and of
Advances provided for herein, shall be made on the basis of the actual number of
days in each month and a 360-day year.
(b) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the 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 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 Section 3.10, Section 3.25 and Section 4.06(d), references
to the most or next most subordinate Class of Certificates outstanding at any
time shall mean the most or next most subordinate Class of Certificates then
outstanding as among the Class A-1A, Class A-1B, Class A-1C, Class CS-1, Class
CS-2, Class CS-3, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7, Class B-1 and Class B-1H Certificates and shall expressly not include the
Class P-IO Certificates. For such purposes, the Class B-1 and Class B-1H
Certificates together shall be considered to be one Class and the Class A-1A,
Class A-1B, Class A-1C, Class CS-1, Class CS-2 and Class CS-3 Certificates
together shall be considered to be one Class. For purposes of this Agreement,
each Class of Certificates other than the Class B-1H, 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 or Notional Balance has not been
reduced to zero. For purposes of this Agreement, the Class V-1 and the Class V-2
Certificates shall be deemed to be outstanding so long as there are any Notes
outstanding, the Class B-1H Certificates 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.
<PAGE>
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 (other than, in respect
of the Prime Retail II Pool Loan, the right to receive the proceeds of the sale
of the Cap Agreements upon foreclosure) and the Floor Agreements, 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 the Prime Interest
Reserve Deposit 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 and all
amounts due under the Floor Agreements 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 as assignee of
the Originator's rights thereunder to the extent related to any Mortgage Loan.
The Servicer or the Trustee shall notify the Originator 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, the 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 Originator.
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 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 Originator (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 Originator'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) the original or a counterpart of the Interest Rate Cap Agreements
entered into by the Prime Retail II Pool Loan Borrowers, and, the
original or a counterpart of the assignment thereof to the Originator,
the original or a counterpart of the reassignment to the Depositor,
the original executed reassignment to the Trustee, copies of all UCC-1
and UCC-3 financing statements submitted for filing with respect to
the Originator's or Depositor's, as applicable, security interest in
such Interest Rate Cap Agreements and an original executed UCC-3
financing statement, in form suitable for filing, disclosing the
assignment to the Trustee of the security interest in such Interest
Rate Agreements;
(xvi) 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 by the Trustee, 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 Servicer by the Depositor or Trustee, as
applicable.
In connection with the transfer and assignment of the Floor Agreements, the
Depositor does hereby deliver to, and deposit with, the Custodian (on behalf or
the Trustee), with copies to the Servicer and Special Servicer, the following
documents or instruments with respect to the Floor Agreements or each Floor
Agreement:
(i) the original executed Master Agreement between the Depositor and the
Floor Counterparty governing all the Floor Agreements;
(ii) the original Confirmation relating to each Floor Agreement;
(iii)the original Schedule to the Master Agreement relating to each Floor
Agreement;
(iv) such instruments of assignment as are necessary to vest title to the
Floor Agreements in the Trustee for the benefit of Certificateholders;
and
(v) copies of the provisional UCC-1 financing statements submitted for
filing with respect to the Trustee's interest in the Floor Agreements.
All original documents relating to the Mortgage Loans and the Floor
Agreements 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. The
Trustee further acknowledges receipt, on behalf of Certificateholders, of the
Prime Retail Treasuries assigned pursuant to Section 3.28. 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) and (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 Originator 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 Originator 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 Originator to, repurchase the related Mortgage Loan in the
manner provided in Section 2.03. None of the Servicer, the Special Servicer and
the 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
Mortgage 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 Originator 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 Real
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 against the Depositor respecting 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 Originator 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 Originator and the Originator shall, to the extent the
Originator 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, the Special 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 but not within such 90
day period and the Originator 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 Originator shall have an
additional 90 days to complete such cure; provided, further, that with respect
to such additional 90 day period the Originator 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 Originator is pursuing in connection with the cure thereof and
stating that the Originator anticipates that such breach will be cured within
the additional 90 day period; and, provided, further, that in the event the
Originator fails to cure such breach within such additional 90-day period, the
repurchase price shall include any Advances (with interest thereon at the
Advance Rate) made in respect of the related Mortgage Loan during such period.
(f) Upon receipt by the Servicer from the Depositor or Originator 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 Originator 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 Originator 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 Originator 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 Originator 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 Originator
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 Originator
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.
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 or foreign jurisdiction
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) 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, the 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, the Special Servicer or the Trustee in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
hereto.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests and Upper-Tier Regular
Interests.
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The Trustee acknowledges the assignment to it of the Mortgage Loans and the
Floor Agreements and the delivery of the Mortgage Files to the Custodian (to the
extent the documents constituting the Mortgage File 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 uncertificated Lower-Tier Regular Interests on behalf
of the Upper-Tier REMIC and the beneficial owners of the Regular Certificates as
beneficial owners of the Upper-Tier Regular Interests and the Class R
Certificates, (ii) acknowledges the issuance of and hereby declares that it
holds the uncertificated Upper-Tier Regular Interests and the Floor Agreements
on behalf of the Grantor Trust and beneficial owners of the Regular Certificates
and (iii) 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 CS-1, Class CS-2, Class
CS-3, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class
P-IO, Class B-1, Class B-1H, 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 (iii)), Lower-Tier Regular Interests and Upper-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 P-IO-L, Class
A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class A-6-L, Class A-7-L, Class
B-1-L and Class B-1H-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-U, Class A-1B-U, Class A-1C-U, Class P-IO-U, Class
A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U, Class A-7-U, Class
B-1-U, and Class B-1H-U Interests and the Class A-1A-U, Class A-1B-U, Class
A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and
A-7-U Strip Components 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 Upper-Tier Regular Interests for purposes of Section
860G(a)(1) of the Code is the Scheduled Final Distribution Date.
(b) The Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7, Class B-1 and Class B-1H Certificates
represent pro rata undivided beneficial interests in the Class A-1A-U, Class
A-1B-U, Class A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class
A-6-U, Class A-7-U, Class B-1-U and B-1H-U Interests at the related Floor
Agreement as specified in Section 4.08. The Class CS-1 and Class CS-2
Certificates represent pro rata undivided beneficial interests in the Class
A-1A-U and Class A-1B-U Strip Components, respectively, and the related Floor
Agreements as specified in Section 4.08. The Class CS-3 Certificates represent
pro rata undivided beneficial interests in the Class A-1C-U, Class A-2-U, Class
A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and A-7-U Strip Components and the
related Floor Agreements as specified in Section 4.08
(c) 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 and in
any net Termination Payments under the Floor Agreements as specified in Section
4.08. 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.
(d) 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.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
---------------------
SECTION 3.01. Servicer to Act as Servicer; Administration of the Mortgage
Loans
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(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)
subject to Sections 3.09, 3.10 and 3.31, 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. Notwithstanding the
foregoing, neither the Servicer nor the Special Servicer shall modify, amend,
waive or otherwise consent to any change of the terms of any Mortgage Loan
except under the circumstances described in Sections 3.09, 3.10, 3.29 and 3.31
or the definition of Extended Monthly Payment hereof. The Servicer and Special
Servicer shall service and administer the Mortgage Loans in accordance with
applicable law and shall provide to the Borrowers any reports required to be
provided to them thereby. 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, 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 Sections 3.09,
3.10 (or the definition of Extended Monthly Payment), 3.29 or 3.31, 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, the Trust Fund 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) and no provision herein may be construed so as to
require the Trust Fund to indemnify any such sub-servicer.
(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.
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 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
3.29 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.
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(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-MD VI 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 Special Servicer, the Trustee or the Fiscal Agent, as applicable,
for any Advance (with interest thereon at the Advance Rate) 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; Certificate Distribution Account;
Upper-Tier Distribution Account; Lower-Tier Distribution
Account; Default Interest Distribution Account; and Excess
Interest Distribution Account.
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(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 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.
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 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 Lower-Tier 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 Lower-Tier 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 and the Trustee as the holder of the Upper-Tier Regular
Interests. 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 Lower-Tier 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) The Trustee shall establish and maintain the Certificate Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The Certificate Distribution Account shall be established
and maintained as an Eligible Account. With respect to each Distribution Date,
the Trustee shall withdraw from the Upper-Tier Distribution Account and deposit
in the Certificate 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 Upper-Tier Regular Interests pursuant to Section
4.01 hereof on such date and shall deposit in the Certificate Distribution
Account all amounts paid by the Floor Counterparty pursuant to the Floor
Agreements (other than amounts in the nature of termination fees) during the
related Collection Period. The Trustee shall withdraw from the Certificate
Distribution Account and remit to the Servicer any shortfall in the amount
necessary to pay any up-front fee required to obtain a substitute floor
agreement in accordance with the terms of Section 4.08 hereof.
(e) Prior to the Servicer Remittance Date relating to any Collection Period
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).
(f) 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 together
with any amounts paid under any Floor Agreement by the counterparty thereof in
the nature of termination fees that are in excess of the amount applied or to be
applied by the Servicer to the purchase of a substitute floor agreement.
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.
(g) Funds in the Collection Account, the Certificate Distribution Account,
the Upper-Tier Distribution Account, the Lower-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 Lower-Tier Distribution
Account, the Default Interest Distribution Account, the Mortgage
Interest Reserve Account and the Excess Interest Distribution Account,
the amounts required to be deposited in the Lower-Tier Distribution
Account, the Default Interest Distribution Account, the Mortgage
Interest Reserve Account and the Excess Interest Distribution Account
pursuant to Sections 4.06, 3.05(e), 3.27 and 3.05(f), respectively;
(ii) to pay or reimburse the Servicer, the Special Servicer, the Trustee or
the Fiscal Agent for Advances (provided that the Trustee and the
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 (x) any collections on
or in respect of the particular Mortgage Loan or REO Property
respecting which such Advance was made, (y) 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 recovered from such 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, the
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 Fee and Special Servicing Compensation (if any),
respectively, in respect of the immediately preceding month, to be
paid, in the case of the 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;
(v) to remit to the Lower-Tier 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 or the
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 8.05(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 withdraw any amount deposited into the Collection Account that was
not required to be deposited therein; and
(x) 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 Fees (including investment income), or Trustee Fees,
Special Servicing Compensation, Advances, Advance Interest Amounts and 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).
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Interest Reserve Accounts and the Borrower
Accounts.
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(a) The Servicer (or with respect to any REO Account, the Special Servicer,
or with respect to the Interest Reserve Accounts, Nomura Securities
International, Inc.) may direct any depository institution maintaining the
Collection Account, the Interest Reserve Accounts and any Borrower Accounts
(subject to the second succeeding sentence) 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 Accounts, 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., the Special Servicer, any
Borrower or Manager 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. 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 Accounts, which shall be for the
benefit of the Special Servicer or (iii) the Interest Reserve Accounts, 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 Accounts,
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 Accounts, Nomura
Securities International, Inc.), shall deposit from its own funds into the
Collection Account, any REO Account or the Interest Reserve Accounts, 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.
(d) To the extent a Borrower, with respect to the Prime Retail II Pool Loan
and MHP II Pool Loan, directs the Servicer to invest funds in the related
Borrower Accounts in money market instruments, the Servicer shall, in addition
to complying with the requirements set forth in such Mortgage Loans, use its
best efforts to cause such funds to be invested in instruments that are rated
AAAm by S&P.
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage.
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(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 18 months (or such longer period or with such extended period
endorsement 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 Non-recoverable
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 a Mortgaged Property is related to
a Mortgage Loan pursuant to which earthquake insurance was in place at the time
of origination, is required to be maintained by the Mortgage Loan and continues
to be available at commercially reasonable rates, the Servicer shall use its
best efforts to cause the related Borrower to maintain, to the extent required
by such Mortgage Loan, and if the related Borrower does not so maintain will
itself obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) earthquake insurance in respect thereof, in the amount
required by the Mortgage Loan or, if not specified, in-place at origination. 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 and 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) then 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 with the Trustee
named as loss payee. 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, with the
Trustee named as loss payee. 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.
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(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
Servicer or Special Servicer, as applicable, on behalf of the Trust Fund shall
not be required to enforce such due-on-sale clause and in connection therewith
shall not be required to (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 if (x) such provision is not exercisable under applicable
law or such exercise is reasonably likely to result in meritorious legal action
by the Borrower or (y) the Servicer or Special Servicer, as applicable,
determines, in accordance with the Servicing Standard, that granting such
consent would be likely to result in a greater recovery, on a present value
basis (discounting at the related Mortgage Rate) than would enforcement of such
clause. If the Servicer or Special Servicer, as applicable, determines that
granting of such consent would likely result in a greater recovery, the Servicer
or Special Servicer, as applicable, 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 (a) the credit status of the prospective new
Borrower is in compliance with the Servicer's or Special Servicer's regular
commercial mortgage origination or servicing standards and criteria (as
evidenced in writing by the Servicer or Special Servicer) and the terms of the
related Mortgage and (b) the Servicer or 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 entered into by the Special Servicer, the Special
Servicer shall give prior notice thereof to the Servicer. The Servicer or
Special Servicer, as applicable, 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, if applicable,) the original copy of such
agreement, 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 Servicer or Special Servicer, as applicable, on behalf of the Trust
Fund, shall not be required to (x) enforce such due-on-encumbrance clause and in
connection therewith will not be required to (i) accelerate the payments on the
related Mortgage Loan or (ii) withhold its consent to such lien or encumbrance
if the Servicer or Special Servicer, as applicable, (x) determines, in
accordance with the Servicing Standard, that such consent would be in the best
interests of the Trust Fund and (y) receives prior written confirmation from
each Rating Agency that 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 3.31.
(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, at the Borrower's expense, 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, the Servicer shall (at the Borrower's
expense) 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)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) 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, the Servicer shall (at the Borrower's expense) 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, the Servicer shall require an Opinion of Counsel of the
related Borrower (which shall be an expense 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. Realization Upon Defaulted Mortgage Loans.
------------------------------------------
(a) Contemporaneously with the occurrence of an Appraisal Reduction Event,
the Servicer shall obtain an appraisal of the Mortgaged Property or REO
Property, as the case may be, from an independent MAI appraiser (an "Updated
Appraisal"), which appraisal shall be conducted in accordance with MAI standards
and the costs of which shall be a Property Advance; provided, however, that the
Servicer shall not be required to obtain an Updated Appraisal of any Mortgaged
Property with respect to which there exists an appraisal which is less than
twelve months old. The Servicer shall obtain annual letter updates to the
Updated Appraisal or new Updated Appraisals, provided, that in the event that
the Servicer becomes aware pursuant to the financial and property reports, if
any, collected from the related Borrower that net operating income with respect
to any Mortgaged Property has dropped by more than 10% in any year or the debt
service coverage ratio of any Mortgaged Property has fallen below 1.2, the
Servicer shall obtain a new Updated Appraisal.
Following a default in the payment of any principal balance and accrued
interest remaining unpaid on the maturity date of a Mortgage Loan, the Servicer
may continue to make P&I Advances if permitted under Section 3.10(j), foreclose
or elect to grant up to two consecutive one-year extensions of the Specially
Serviced Mortgage Loan; provided that the Special Servicer may only extend such
Mortgage Loan if (i) immediately prior to the default on the maturity date (or
the first anniversary thereof in the case of the second extension), the related
Borrower had made twelve consecutive Monthly Payments (or Extended Monthly
Payments (as defined herein) in the case of the second extension) on or prior to
their Due Dates, (ii) the Special Servicer determines that (A) extension of such
Mortgage 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, (iii) such extension requires that all cash flow on all related
Mortgage Properties in excess of amounts required to operate and maintain such
Mortgaged Properties be applied to payments of principal and interest on such
Mortgage Loan, (iv) the Special Servicer terminates the related Manager unless
the Special Servicer determines that retaining such Manager is conducive to
maintaining the value of such Mortgaged Properties and (v) such extension
requires the related Borrower to make Extended Monthly Payments. The Special
Servicer's determination to extend shall be made in the Special Servicer's good
faith judgment, and may, but is not required to be, based on an Updated
Appraisal or a letter update thereof.
The Special Servicer will not agree to any extension of a Mortgage Loan
beyond the date which is two years prior to the Rated Final Distribution Date.
If the related Borrower fails to make an Extended Monthly Payment during the
initial extension period, no further extensions will be granted. In no event
will the Special Servicer be permitted to modify or extend any Mortgage Loan at
a rate lower than the Mortgage Rate.
(b) In connection with any foreclosure, enforcement of the Loan Documents
or other acquisition, the Special Servicer shall pay the costs and expenses in
any such proceedings as an Advance unless the Special Servicer determines, in
its good faith judgment, that such Advance would constitute a Nonrecoverable
Advance. The Special 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(ii) and Section 3.06(iii).
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.
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
Servicer) or a separate trustee or co-trustee on behalf of the Trustee as holder
of the Lower-Tier Regular Interests and Upper-Tier Regular Interests and on
behalf of the holders of the Certificates. 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 a REO Mortgage 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.
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.
(c) Notwithstanding any provision 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.
(d) 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.
(e) 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:
(A) 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
(B) 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.
(f) The environmental assessment contemplated by Section 3.10(e) 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.
(g) If the Special Servicer determines pursuant to Section 3.10(e)(A) 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(e)(B) 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 delivered to the Trustee, 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. 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(g) 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.
(h) 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.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(i) The costs of any 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).
(j) Following a default in the payment of principal or interest on a
Mortgage Loan, the Special Servicer, after consultation and agreement by the
Servicer, may elect not to foreclose or institute similar proceedings or to
modify the loan pursuant to Section 3.31 and instead the Servicer shall continue
to make P&I Advances with respect to such delinquencies so long as the Special
Servicer, in its reasonable judgment in accordance with the Servicing Standard,
after consultation and agreement by the Servicer, concludes (a) that the
election not to foreclose or to modify would likely result in a greater
recovery, on a present value basis, than would foreclosure or modification and
(b) such P&I Advances will not be Nonrecoverable Advances.
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
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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 Lower-Tier 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.
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(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, Assumption Fees, loan modification fees,
extension fees, loan service transaction fees, demand fees, beneficiary
statement charges, or similar items (but not including any Prepayment Premiums),
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 Lower-Tier Distribution Account, Upper-Tier Distribution Account,
Certificate Distribution Account, Default Interest Distribution Account, and
Excess Interest Distribution Account any interest or other income earned on
deposits therein. Notwithstanding the foregoing, the Servicing Fee due to the
Servicer on any Distribution Date shall be reduced by the amount of any Servicer
Prepayment Interest Shortfalls for the related Collection Period.
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). The Special Servicer's
rights to the Special 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 Specially Serviced
Mortgaged Loans, any Assumption Fees and loan modification fees and (ii) any
interest or other income earned on deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) In addition to the Special Servicing Fees provided for in this
Agreement, and not in lieu thereof, the Special Servicer shall be entitled to
the following fees and compensation:
(i) the Special Servicing Rehabilitation Fee; and
(ii) the REO Disposition Fee payable out of the Liquidation Proceeds prior
to the deposit of the Net Liquidation Proceeds in the Collection
Account. However, no REO Disposition Fee will be payable in connection
with, or out of, Liquidation Proceeds resulting from the purchase of
any Specially Serviced Mortgage Loan or REO Property (i) by the
Originator pursuant to the Mortgage Loan Purchase and Sale Agreement,
or (ii) by the Servicer, the Depositor or the Certificateholders
pursuant to Section 9.01.
(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 greater than 50% of the Percentage Interests of the
most subordinate Class of Certificates then outstanding (provided, however, that
for purposes of determining the most subordinate class, the Class B-1 and Class
B-1H Certificates will be collectively treated as one class and the Class P-IO
Certificates shall not be considered subordinate), 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(vi).
(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 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.
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(a) The Servicer shall deliver to the Trustee, the Special Servicer and the
Fiscal Agent, no later than 12:00 noon Central time on the Due Date prior to
each Distribution Date a preliminary report containing the information provided
on the Servicer Remittance Report and by no later than 12:00 noon 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 Officers' 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
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 (the "reporting person") at its own 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. The 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 or 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.
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(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. Consistently with the foregoing, the Special Servicer shall cause or
permit to be earned with respect to such REO Property any "net income from
foreclosure property," within the meaning of Section 860G(c) of the Code, which
is subject to tax under the REMIC Provisions only if it has determined, and has
so advised the Trustee in writing, that the earning of such income on a net
after-tax basis could reasonably be expected to result in a greater recovery on
behalf of Certificateholders than an alternative method of operation or rental
of such REO Property that would not be subject to such a tax. 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-MD VI, 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 Special Servicer shall notify the Servicer thereof, and, upon receipt of
such notice, 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. The
Servicer shall obtain a new Updated Appraisal or a letter update every 12 months
thereafter.
(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.
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(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 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 (of at least three
offers) 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, if the offeror is not an Interested Person (or
the Trustee, if an Interested Person is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the 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; Inspections;
Successor Manager.
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(a) The Servicer (or, with respect to Specially Serviced Mortgage Loans and
REO Properties, 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 with 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 January 1997 (or at such lesser frequency as
each Rating Agency shall have confirmed in writing to the Servicer, will not
result a downgrade, qualification or withdrawal of the then current ratings
assigned to any Class of the Certificates) and (C) if the Mortgage Loan (i)
becomes a Specially Serviced Mortgage Loan, (ii) has a debt service coverage
ratio of less than 1.0 or (iii) is delinquent for 60 days, 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 such
condition exists.
(b) With respect to each Mortgage Loan, the Servicer shall enforce the
Trustee's rights with respect to the Manager under the related Mortgage and
Management Agreement. In the event the Servicer is entitled to terminate the
Manager, the Servicer shall promptly give notice to the Trustee (who shall copy
the Certificateholders), the Originator, the Depositor and each Rating Agency.
After receipt of such notice, the most subordinate Class of Certificates then
outstanding (provided, however, that for purposes of determining the most
subordinate class, the Class B-1, and Class B-1H Certificates together will be
collectively treated as one class and in the event that the Class A-1A, Class
A-1B, Class A-1C, Class CS-1, Class CS-2 and Class CS-3 Certificates are the
only Classes outstanding the Class A-1A, Class A-1B, Class A-1C, Class CS-1,
Class CS-2 and Class CS-3 Certificates alone shall be treated as the most
subordinate Class of Certificates) 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 Servicer's notice to respond to
such notice. Upon receipt of a recommendation to terminate the manager and
appoint a Successor Manager, the Servicer shall give notice of such
recommendation to the Trustee (who shall copy the Certificateholders), and the
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 Servicer shall procure
a Successor Manager as set forth in the following sentence; or (ii) the Servicer
determines that effecting such recommendation to terminate is not consistent
with the Servicing Standard, the Servicer shall only effect such recommendation
if within 30 days of giving notice to all other Holders of Certificates the
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 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 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 Servicer. For the purposes of this paragraph, a "Successor
Manager" shall be reasonably acceptable to the 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, as confirmed in writing by each Rating
Agency, and (iii) otherwise satisfies any criteria set forth in the Mortgage and
related Loan Documents.
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 S&P 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. The Custodian shall maintain a fidelity bond in the form
and amount that are customary for securitizations similar to the securitization
evidenced by this Agreement, with Trustee named as loss payee. The Custodian
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 Custodian. In addition,
the Custodian 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 hereunder in the
form and amount that are customary for securitizations similar to the
securitization evidenced by this Agreement, with the Trustee named as loss
payee. All fidelity bonds and policies of errors and omissions insurance
obtained under this Section 3.21 shall be issued by a Qualified Insurer.
<PAGE>
SECTION 3.22. Reports to the Securities and Exchange Commission; Available
Information.
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(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 promptly upon 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.
The Servicer shall promptly prepare, sign and, except to the extent the
Servicer receives contrary directions from the Depositor or the Trustee, file
with the Commission, and shall mail to the Trustee, who will copy each
Certificateholder upon request (provided that each Certificateholder 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), each Rating
Agency, the Depositor and the Originator, a Current Report on Form 8-K under the
Exchange Act or other equivalent report attaching all quarterly and annual
financial statements of the Borrower with respect to the Prime Retail II Pool
Loan and the MHP II Pool Loan provided to the Servicer pursuant to the such
Mortgage Loans.
(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.
(f) 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.
(g) 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.
(h) Notwithstanding 3.22(a) - (g) neither the Trustee, Servicer nor Special
Servicer shall provide any financial statements, rent rolls, occupancy reports
or any other financial or statistical data with respect to (i) the Prime Retail
II Pool Loan to a Certificateholder or prospective Certificateholder that, to
the knowledge of the Servicer, is the Manager or an affiliate of the Manager or
Borrower under the HGI II Pool Loan or (ii) the HGI II Pool Loan to a
Certificateholder or prospective Certificateholder that, to the knowledge of the
Servicer, is the Manager or an affiliate of the Manager or Borrower under the
Prime Retail II Pool Loan, unless such information is being disseminated
pursuant to a 1934 Act Report or, if the Trust is no longer registered under the
Exchange Act, is (x) being made available to holders of Certificates that have
been publicly offered under the Securities Act of 1933 and (y) would have been
filed as part of a 1934 Act Report if the Trust had continued to be registered
under the Exchange Act.
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) The Servicer is hereby appointed as the initial Special Servicer to
service each Specially Serviced Mortgage Loan.
(b) Certificateholders representing greater than 50% Percentage Interests
of the most subordinate Class of Certificates outstanding (provided, however,
that for purposes of determining the most subordinate class, the Class B-1 and
Class B-1H Certificates together will be collectively treated as one class and
in the event that the Class A-1A, Class A-1B, Class A-1C, Class CS-1, Class CS-2
and Class CS-3 Certificates are the only classes outstanding, the Class A-1A,
Class A-1B, Class A-1C, Class CS-1, Class CS-2 and Class CS-3 Certificates alone
will be treated as the subordinate class) 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 Trustee and each Rating Agency, 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.
(e) In the event that a Mortgage Loan secured by a hotel becomes a
Specially Serviced Mortgage Loan, the Special Servicer will be required to hire
a consultant which is experienced in the operation of such facilities at the
expense of the Trust Fund as a Property Advance.
(f) 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. If AMRESCO Management, Inc. ceases to be the Servicer or
the Special Servicer, respectively, the remaining party of the two and the
successor Servicer or Special Servicer, as applicable, 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 Loans, 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 Specially Serviced 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 Servicer, with a copy to the Trustee 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.
SECTION 3.27. Interest Reserve Accounts.
--------------------------
(a) The Depositor shall, on the Closing Date, fund the Mortgage Interest
Reserve Account with an amount, in cash, equal to one day of interest, at a rate
per annum equal to 7.264%, on the principal balance of the Prime Retail II Pool
Loan as of the Cut-off Date (the "Prime Interest Reserve Deposit"). On each
Servicer Remittance Date relating to any Interest Accrual Period ending in any
February and on any Servicer Remittance Date relating to any Interest Accrual
Period ending in any January which occurs in a year which is not a leap year,
the Servicer shall remit to the Trustee, in respect of the Prime Retail II Pool
Loan, for deposit into the Mortgage Interest Reserve Account, an amount equal to
one day's interest on the Stated Principal Balance of the Prime Retail II Pool
Loan as of the Due Date occurring in the month preceding the month in which such
Servicer Remittance Date occurs at the related Mortgage Pass-Through 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, "Mortgage Withheld
Amounts").
(b) On each Servicer Remittance Date relating to any Interest Accrual
Period ending in any February and on any Servicer Remittance Date relating to
any Interest Accrual Period ending in any January which occurs in a year which
is not a leap year, the Servicer shall remit to the Trustee, in respect of the
Floor Agreements, for deposit into the Floor Interest Reserve Account an amount
equal to one day's interest on the notional balance of each Floor Agreement as
of the Due Date occurring in the month preceding the month in which such
Servicer Remittance Date occurs at the related Floor Rate, to the extent a full
payment is made by the Floor Counterparty (all amounts so deposited in any
consecutive January and February, "Floor Withheld Amounts").
(c) 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 February, if any, and deposit such amount
into the Distribution Account.
SECTION 3.28. Prime Retail Treasury Collateral Account.
-----------------------------------------
(a) On the Closing Date, the Originator shall fund an account (the "Prime
Retail Treasury Collateral Account") with U.S. Treasury obligations (together
with any U.S. Treasury obligations subsequently deposited in the Prime Retail
Treasury Collateral Account, the "Prime Retail Treasuries") having a market
value equal to the Prime Retail Treasury Required Amount as of such date. The
Originator shall take all steps necessary to cause the Prime Retail Treasuries
to be registered in the name of "LaSalle National Bank, as Trustee, in trust for
Holders of Asset Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1996-MD VI". On each Distribution Date prior to the
occurrence of an event of default under the Prime Retail II Pool Loan, the
Servicer shall determine the market value of the Prime Retail Treasuries (as
determined by Nomura Securities International, upon request of the Servicer). In
the event that the market value of the Prime Retail Treasuries plus any interest
paid on the Prime Retail Treasuries exceeds the Prime Retail Treasury Required
Amount, the Servicer shall remit to the Originator the amount of any such excess
(first from the amount of such interest). In the event that the Prime Retail
Treasury Required Amount exceeds the market value of the Prime Retail
Treasuries, the Originator shall deposit additional U.S. Treasury obligations in
an amount equal to such excess. For purposes of determining the amount of Prime
Retail Treasuries to be remitted to the Originator and the amount of additional
U.S. Treasury obligations to be deposited by the Originator, the Prime Retail
Treasury Required Amount shall be rounded up to the nearest increment that
results in the amount to be deposited or remitted being divisible by the minimum
transferable denomination of such U.S. Treasury obligations.
(b) On any Servicer Remittance Date following the occurrence of an event of
default under the Prime Retail II Pool Loan, the Servicer shall sell Prime
Retail Treasuries in an amount equal to the Prime Retail Expansion Debt Service
for such Distribution Date (or, if less, the then-remaining balance of the Prime
Retail Treasury Collateral Account) and shall deposit the proceeds of such sale
into the Lower-Tier Distribution Account. For purposes of the preceding
sentence, the Prime Retail Expansion Debt Service shall be rounded up to the
nearest increment that results in the amount to be sold being divisible by the
minimum transferable denomination of such U.S. Treasury obligations. The
Originator shall facilitate any such sale and shall cooperate in any such sale
to the extent requested by the Servicer. On the Distribution Date occurring in
December 2000, if no event of default has occurred under the Prime Retail II
Pool Loan, the Servicer shall remit all Prime Retail Treasuries then on deposit
in the Prime Retail Treasury Collateral Account to the Originator. Any
recoveries on the Prime Retail II Pool Loan in excess of the amount necessary to
reimburse Advances (with interest thereon at the Advance Rate) with respect
thereto and to pay all amounts due with respect thereto to any Class of
Certificates (other than the Class R or Class LR Certificates) shall be
deposited within one business day of receipt in the Prime Retail Treasury
Collateral Account up to the amount necessary to reimburse all draws therefrom.
(c) The Prime Retail Treasury Collateral Account and the Prime Retail
Treasuries shall be an "outside reserve fund" under the REMIC Provisions,
beneficially owned by the Originator for federal income tax purposes, which
shall report all income, gain, deduction or loss with respect thereto. Any
amounts remitted from the Collection Account to the Prime Retail Treasury
Collateral Account shall be treated as remitted to the Originator as beneficial
owner thereof.
SECTION 3.29. Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Specific Mortgage Loans.
------------------------------------------------------------
(a) Notwithstanding anything contained elsewhere in this Agreement to the
contrary, the Servicer or Special Servicer, as applicable, shall be subject to
the following limitations or authorizations, as applicable, with respect to the
specific Mortgage Loans identified below.
(i) To the extent not inconsistent with the Mortgage Loans, the
Servicer or Special Servicer, as applicable, shall if the total amount of
casualty or condemnation proceeds or awards exceeds 5% of the current principal
balance of a Mortgage Loan, require, to the extent permitted by the Loan
Documents, the Borrower to obtain prior to the release of such funds (x) an
independent architect's certificate certifying (I) that the portion of the
restoration, has been completed in accordance with plans and specifications
previously provided to the Servicer, or Special Servicer, as applicable, (II)
the estimated percentage of restoration completed and the actual sum required to
complete the remaining restoration and (III) compliance of the restoration with
all legal requirements; (y) applicable lien waivers; and (z) an endorsement to
the title insurance policy insuring the continued priority of the lien of the
mortgage.
(ii) With respect to the MHP II Pool Loan, the provision requiring
earthquake insurance to be carried by the current insurer (which is Allendale
Mutual Insurance Company) or "a comparable insurer" shall be construed by the
Servicer or Special Servicer to mean an insurer with the same or better rating
by at least two Rating Agencies (one of which must be S&P), or, if two such
ratings are not available, an insurer, which will not, as confirmed in writing
from each of the Rating Agencies, in and of itself, result in the qualification,
downgrade or withdrawal of the ratings assigned by the Certificates.
(iii) With respect to the MHP II Pool Loan and the Columbia Sussex II
Pool Loan, the Servicer shall not permit a decrease in the capital expenditure
and furniture, fixture and equipment fund monthly deposit requirements without
first obtaining written confirmation from the Rating Agencies that such decrease
will not, in and of itself, result in the qualification, downgrade or withdrawal
of the ratings assigned to the Certificates.
(iv) [Intentionally left blank].
(v) With respect to the Prime Retail II Pool Loan, the Servicer, when
applying the definition of "Substantial Taking" in Section 6.01(a) of the
related Mortgage, shall make the 1.45 DSCR determination required by Section
6.01(a) of the related Mortgage, in its own discretion.
(vi) With respect to the Prime Retail II Pool Loan, the Servicer's
consent as required by Section 7.02(e)(iii)(C)(y) of the related Mortgages shall
be conditioned upon receipt of written confirmation from the Rating Agencies
that the matters so consented to would not, in and of themselves, result in the
qualification, downgrade or withdrawal of the ratings assigned to the
Certificates.
(vii) With respect to the Prime Retail II Pool Loan, the Servicer
shall not require Rating Agency approval of tenants as would otherwise be
required by clause (vi) of the definition of Expansion Income contained in the
related Mortgages.
(viii) With respect to the Columbia Sussex II Pool Loan, the Servicer
shall require the related Borrower to maintain at least one-month's ground lease
rent in the related Escrow Account.
(ix) With respect to the Columbia Sussex II Pool Loan, the Servicer,
prior to consenting to an amendment to the organizational documents of the
Borrower or the general partner of the Borrower or the transfer of ownership
interests in the related Borrower or the general partner of the Borrower or any
transfer of a Mortgaged Property securing the Columbia Sussex II Pool Loan, (A)
shall obtain written confirmation from the Rating Agencies that such transfer
would not, in and of itself, result in the qualification, downgrade or
withdrawal of the ratings assigned to the Certificates and (B) shall obtain
confirmation from the Rating Agencies that any related non-consolidation opinion
provided by the Borrower is satisfactory to the Rating Agencies.
(x) With respect to the Palmer Square Loan, the Servicer shall direct
each related Borrower, upon the expiration of the applicable property insurance
policies in place as of the date hereof, to obtain such insurance from a carrier
with a claims paying rating of "AA" or better by at least two of the Rating
Agencies (one of which shall be S&P).
(xi) With respect to the HGI II Pool Loan, the Servicer shall comply
with the confidentiality requirements set forth in Section 8.29 of the related
Loan Agreement.
(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. Any
such consent or waiver shall also satisfy the criteria set forth in Section
3.09(a) or (b), to the extent applicable.
(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) 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.
(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 each Mortgage Loan, 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) The Servicer shall not consent to a change of franchise affiliation
with respect to a Mortgaged Property unless it obtains written confirmation from
Fitch, S&P 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) The obligations of the Servicer and Special Servicer set forth in this
Section 3.29 shall be subject to the operative documents with respect to the
related Mortgage Loan, and the failure or inability of the related Borrower to
comply with the Servicer's or the Special Servicer's direction shall not be
deemed to be an Event of Default of the Servicer or the Special Servicer
hereunder.
(i) 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 determines (taking into account the value and revenues of the
related Mortgaged Property and the ability of the Borrower to pay the Mortgage
Loan (including such Excess Interest)) that (1) in the absence of the waiver of
such Excess Interest, there is a reasonable likelihood that the Mortgage Loan
will not be paid in full on the related Maturity Date and (2) the waiver of the
right to such accrued Excess Interest is reasonably likely to produce a larger
and not equivalent payment to Certificateholders (other than holders of the
Class V-2 Certificates) on a present value basis than a refusal to waive the
right to such Excess Interest. 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. In no event shall such waiver of such Excess Interest
be effective prior to the date of actual prepayment in full (other than such
waived Excess Interest), and such waiver shall in no event be effective if such
prepayment is not made.
(j) [Intentionally left blank]
(k) Subject to Section 3.01 and Section 3.19(b), in determining whether to
extend the term of a Management Agreement with a Manager that is an Affiliate of
the related Borrower, the Servicer shall take into account the preservation and
maintenance of the value of the related Mortgaged Property and any potential
increase in cash flow available to pay such Mortgage Loan which would result
from the replacement of the affiliated Manager with a comparable third party
property manager upon expiration of the existing Management Agreement.
(l) 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 reasonable rates.
(m) 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.
(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 Servicer or Special Servicer, as applicable, may only require such a
prepayment if the Servicer or Special Servicer, as applicable, has determined in
accordance with the Servicing Standard that such prepayment is in the best
interests of all Certificateholders.
(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. If the Mortgage Loan requires
the lender or its designee to assume such defeased obligations, the Originator
shall establish a special purpose entity to assume such obligations, the
establishment of which will not, as evidenced in writing, in and of itself,
result in the downgrade, qualification or withdrawals of the ratings assigned to
the Certificates.
SECTION 3.30. 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 3.31 Modifications.
--------------
(a) During the term of a Mortgage Loan, the Special Servicer, may,
consistent with the Servicing Standard, agree to modify a Mortgage Loan to
reduce the amount of principal (but not interest) payable monthly on such
Mortgage Loan, provided that (a) a material default in respect of payment 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 is reasonably likely to produce a
greater recovery to Certificateholders, on a net present value basis, than would
liquidation; (b) 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); and (c) the Special
Servicer may only agree to reductions of principal lasting a period of no more
than twelve consecutive months and, in the aggregate, to no more than three
reductions of twelve months or less each; provided, however, Certificateholders
representing greater than 66 2/3% of all Voting Rights may direct the Special
Servicer not to agree to any such modification. The Special Servicer shall
promptly provide a copy of such proposed modification to the Servicer, the
Rating Agencies and the Trustee. The Trustee shall, within two business days,
notify, in writing, all of the Certificateholders that have Voting Rights of
such proposed modification. For purposes of determining whether
Certificateholders representing 66 2/3% of all Voting Rights have directed the
Special Servicer not to agree to such modification, each Certificateholder shall
have 15 days to respond to such notice, and any Certificateholder that has not
responded within such time period shall be deemed to have consented to such
modification.
Additionally, the Special Servicer may, consistent with the Servicing
Standard, agree to any modification, waiver or amendment of any term or 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 (the
"Directing Class"), subject, however, to each of the following limitations,
conditions and restrictions: (a) a material default in respect of 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 net
present value basis, than would liquidation; (b) no reduction in the scheduled
monthly payment of interest on any Mortgage Loan as result of such modification,
waiver or amendment may result in an Interest Shortfall to any class other than
the Directing Class, determined as of the date of such modification, waiver or
amendment; (c) any reduction in the scheduled monthly payment of principal
and/or interest on any Mortgage Loan must require that all cash flow on all
related Mortgaged Properties in excess of amounts required to operate and
maintain such Mortgaged Properties be applied to payments of principal and
interest on such Mortgage Loan; (d) the Special Servicer may only agree to
reductions of principal and/or interest lasting a period of no more than twelve
consecutive months and, in the aggregate, to no more than three reductions of
twelve months or less each; (e) the Special Servicer may not reduce any
Prepayment Premium or Lock-out Period; (f) the Special Servicer may not forgive
an aggregate amount of principal of the Mortgage Loans in excess of (i) 80
percent of the Certificate Balance of the Directing Class less (ii) the
aggregate amount of Appraisal Reduction Amounts, Interest Shortfalls, Interest
Reduction Amounts and Interest Reduction Shortfalls then outstanding (other than
with respect to the Directing Class); and (g) the Special Servicer shall not
permit any Borrower to add any real property collateral unless 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 real property 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. If the
Certificateholders representing 100% of the Percentage Interests of the second
most subordinate Class of Certificates then outstanding consent to such
modification, waiver or amendment, the Directing Class for purposes of the
determinations made in clauses (b) and (f) shall include the second most
subordinate Class of Certificates and the amount by which principal can be
reduced shall not be in excess of 80% of the aggregate principal balance of both
such Classes less the items specified in clause (f)(ii). A modification pursuant
to this paragraph is not subject to the veto of Certificateholders set forth in
the preceding paragraph of this Section.
(b) Notwithstanding Section 3.31(a), the Servicer or the Special Servicer,
as applicable, shall be permitted to modify, waive or amend any term of a
Mortgage Loan that is not in default or as to which default is not reasonably
foreseeable but only if such modification, waiver or amendment (a) would not be
"significant" as such term is defined in Code Section 1001, or Treasury
Regulations Section 1.860G-2(b)(3), as evidenced by an Opinion of Counsel, (b)
would be in accordance with the Servicing Standard and (c) would not adversely
affect in any material respect the interest of any Certificateholder not
consenting thereto. The consent thereto of the majority of Percentage Interests
of each Class of Certificates affected thereby or written confirmation from each
Rating Agency that such modification, waiver or amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates shall not be required but shall be conclusive evidence that
such modification, waiver or amendment would not adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
(c) The Servicer or Special Servicer, as applicable, shall provide copies
of any modifications, waivers or amendments pursuant to this Section 3.31 to
each Rating Agency.
<PAGE>
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
-----------------------------------
SECTION 4.01. Distributions.
--------------
(a) On each Distribution Date, to the extent of Available Funds, other than
any amount of Available Funds described in clauses (ii) and (iv) (with respect
to Floor Withheld Amounts) of the definition thereof, amounts held in the
Lower-Tier Distribution Account shall be withdrawn and deposited in the
Upper-Tier Distribution Account in the following amounts:
(i) First, pro rata, 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-U
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-U 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-U
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-U 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-U
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-U Strip
Pass-Through Rate on the Component Balance of the Class A-1C-L
Interest;
(G) 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;
(H) 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;
(I) 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;
(J) 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;
(K) to the Class A-6-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-6 Strip
Pass-Through Rate on the Component Balance of the Class A-6-L
Interest;
(L) to the Class A-7-L Interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class A-7 Strip
Pass-Through Rate on the Component Balance of the Class A-7-L
Interest.
(ii) Second, pro rata, 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
Balance 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-2-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-2-L Interest;
(H) to the Class A-3-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-3-L Interest;
(I) to the Class A-4-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-4-L Interest;
(J) to the Class A-5-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-5-L Interest;
(K) to the Class A-6-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-6-L Interest; and
(L) to the Class A-7-L Interest, up to an amount equal to the
aggregate unpaid Interest Shortfalls in respect of clause (i)(L)
previously allocated thereto in respect of the Component Balance
of the Class A-7-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-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-U Pass-Through Rate on the Certificate Balance of the
Class A-2-L Interest;
(ix) Ninth, to the Class A-2-L Interest, the sum of (A) up to 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-2-L Interest, (B) up to an amount equal to the
Reduction Interest Distribution Amount of the Class A-2-U Strip
Component, and (C) up to an amount equal to the aggregate unpaid
Reduction Interest Shortfalls of the Class A-2-U Strip Component;
(x) Tenth, after the Certificate Balance of the Class A-1C-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;
(xi) Eleventh, 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;
(xii)Twelfth, 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-U Pass-Through Rate on the Certificate Balance of the
Class A-3-L Interest;
(xiii) Thirteenth, to the Class A-3-L Interest, the sum of (A) up to 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-3-L Interest, (B) up to an amount
equal to the Reduction Interest Distribution Amount of the Class A-3-U
Strip Component, and (C) up to an amount equal to the aggregate unpaid
Reduction Interest Shortfalls of the Class A-3-U Strip Component;
(xiv)Fourteenth, 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;
(xv) Fifteenth, 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;
(xvi)Sixteenth, 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-U Pass-Through Rate on the Certificate Balance of the
Class A-4-L Interest;
(xvii) Seventeenth, to the Class A-4-L Interest, the sum of (A) up to 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-4-L Interest, (B) up to an amount
equal to the Reduction Interest Distribution Amount of the Class A-4-U
Strip Component, and (C) up to an amount equal to the aggregate unpaid
Reduction Interest Shortfalls of the Class A-4-U Strip Component;
(xviii) Eighteenth, 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;
(xix)Nineteenth, 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;
(xx) Twentieth, 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-U Pass-Through Rate on the Certificate Balance of the
Class A-5-L Interest;
(xxi)Twenty-first, to the Class A-5-L Interest, the sum of (A) up to 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-5-L Interest, (B) up to an amount equal to the
Reduction Interest Distribution Amount of the Class A-5-U Strip
Component, and (C) up to an amount equal to the aggregate unpaid
Reduction Interest Shortfalls of the Class A-5-U Strip Component;
(xxii) Twenty-second, 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;
(xxiii) Twenty-third, 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;
(xxiv) Twenty-fourth, to the Class A-6-L Interest, in respect of interest,
up to an amount equal to interest for the related Interest Accrual
Period at the Class A-6-U Pass-Through Rate on the Certificate Balance
of the Class A-6-L Interest;
(xxv)Twenty-fifth, to the Class A-6-L Interest, the sum of (A) up to 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-6-L Interest, (B) up to an amount
equal to the Reduction Interest Distribution Amount of the Class A-6-U
Strip Component, and (C) up to an amount equal to the aggregate unpaid
Reduction Interest Shortfalls of the Class A-6-U Strip Component;
(xxvi) Twenty-sixth, after the Certificate Balance of the Class A-5-L
Interest has been reduced to zero, to the Class A-6-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-6-L Interest is reduced to zero;
(xxvii) Twenty-seventh, to the Class A-6-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;
(xxviii) Twenty-eighth, to the Class A-7-L Interest, in respect of
interest, up to an amount equal to interest for the related Interest
Accrual Period at the Class A-7-U Pass-Through Rate on the Certificate
Balance of the Class A-7-L Interest;
(xxix) Twenty-ninth, to the Class A-7-L Interest, the sum of (A) 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 A-7-L Interest, (B) up to an amount
equal to the Reduction Interest Distribution Amount of the Class A-7-U
Strip Component, and (C) up to an amount equal to the aggregate unpaid
Reduction Interest Shortfalls of the Class A-7-U Strip Component;
(xxx)Thirtieth, after the Certificate Balance of the Class A-6-L Interest
has been reduced to zero, to the Class A-7-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-7-L Interest is reduced to zero;
(xxxi) Thirty-first, to the Class A-7-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;
(xxxii) Thirty-second, pro rata, to the Class B-1-L and Class B-1H-L
Interests, in respect of interest, up to an amount equal to interest
for the related Interest Accrual Period at the Class B-1-L/U
Pass-Through Rate and the Class B-1H-L/U Pass-Through Rate,
respectively, on the respective Certificate Balances of the Class
B-1-L and Class B-1H-L Interests;
(xxxiii) Thirty-third, pro rata, to the Class B-1-L and Class B-1H-L
Interests, 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 respective Certificate
Balances of the Class B-1-L and Class B-1H-L Interests;
(xxxiv) Thirty-fourth, after the Certificate Principal Balance of the Class
A-7-L Interest has been reduced to zero, to the Class B-1-L and Class
B-1H-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-1-L and Class B-1H-L Interests are reduced to zero;
(xxxv) Thirty-fifth, to the Class B-1-L and Class B-1H-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
(xxxvi) Thirty-sixth, to the Class LR Certificates, but only to the extent
of Available Funds (other than any amount of Available Funds described
in clauses (ii) and (iv) (with respect to Floor Withheld Amounts) of
the definition thereof), if any, remaining in the Lower-Tier
Distribution Account.
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 distributions of
principal other than in reimbursement of Realized Losses shall mean pro rata
based on Certificate Balance; and with respect to distributions in reimbursement
of Realized Losses shall mean pro rata based on the amount of unreimbursed
Realized Losses previously allocated to the applicable Classes.
(b) On each Distribution Date, the amount of Class P-IO Available Funds
held in the Lower-Tier Distribution Account shall be withdrawn and deposited in
the Upper-Tier Distribution Account in respect of the Class P-IO-L Interest.
(c) On each Distribution Date, amounts on deposit in the Upper-Tier
Distribution Account, other than in respect of the Class P-IO-L Interest, shall
be withdrawn and deposited in the Certificate Distribution Account in the
following 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-U, Class
A-1B-U and Class A-1C-U Interests and the Class A-1A-U, Class A-1B-U,
Class A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U,
Class A-6-U and Class A-7-U Strip Components, up to an amount equal to
the aggregate Class Interest Distribution Amounts of such Upper-Tier
Regular Interests;
(ii) Second, pro rata, to the Class A-1A-U, Class A-1B-U and the Class
A-1A-U, Class A-1B-U, Class A-1C-U, Class A-2-U, Class A-3-U, Class
A-4-U, Class A-5-U, Class A-6-U and Class A-7-U Strip Components
Interests, in respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously allocated to
such Upper-Tier Regular Interests;
(iii)Third, prior to the Cross-Over Date, to the Class A-1A-U Interest, 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-U Interest, 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 thereof is reduced to zero;
(v) Fifth, prior to the Cross-Over Date, to the Class A-1C-U Interest, 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-U, Class
A-1B-U and Class A-1C-U Interests, 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-U, Class
A-1B-U and Class A-1C-U Interests, pro rata, 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-2-U Interest, in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(ix) Ninth, pro rata, in respect of interest, (A) to the Class A-2-U
Interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated thereto, (B) to the Class A-2-U Strip
Component, up to an amount equal to the aggregate Reduction Interest
Distribution Amount of the Class A-2-U Strip Component and (C) to the
Class A-2-U Strip Component, up to an amount equal to the aggregate
unpaid Reduction Interest Shortfalls previously allocated to the Class
A-2-U Strip Component;
(x) Tenth, to the Class A-2-U Interest, 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 thereof is reduced to
zero;
(xi) Eleventh, to the Class A-2-U Interest, 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
thereto;
(xii)Twelfth, to the Class A-3-U Interest, in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(xiii) Thirteenth, pro rata, in respect of interest, (A) to the Class A-3-U
Interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated thereto, (B) to the Class A-3-U Strip
Component, up to an amount equal to the aggregate Reduction Interest
Distribution Amount of the Class A-3-U Strip Component and (C) to the
Class A-3-U Strip Component, up to an amount equal to the aggregate
unpaid Reduction Interest Shortfalls previously allocated to the Class
A-3-U Strip Component;
(xiv)Fourteenth, to the Class A-3-U Interest, 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 thereof is reduced to zero;
(xv) Fifteenth, to the Class A-3-U Interest, 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
thereto;
(xvi)Sixteenth, to the Class A-4-U Interest, in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(xvii) Seventeenth, pro rata, in respect of interest, (A) to the Class
A-4-U Interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated thereto, (B) to the Class
A-4-U Strip Component, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-4-U Strip
Component and (C) to the Class A-4-U Strip Component, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class A-4-U Strip Component;
(xviii) Eighteenth, to the Class A-4-U Interest, in reduction of the
Certificate Balance thereof, 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 thereof is reduced thereto;
(xix)Nineteenth, to the Class A-4-U Interest, 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
thereto;
(xx) Twentieth, to the Class A-5-U Interest, in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(xxi)Twenty-first, pro rata, in respect of interest, (A) to the Class
A-5-U Interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated thereto, (B) to the Class
A-5-U Strip Component up to an amount equal to the aggregate Reduction
Interest Distribution Amount of the Class A-5-U Strip Component and
(C) to the Class A-5-U Strip Component, up to an amount equal to the
aggregate unpaid Reduction Interest Shortfalls previously allocated to
the Class A-5-U Strip Component;
(xxii) Twenty-second, to the Class A-5-U Interest in reduction of the
Certificate Balance thereof, 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 thereof is reduced to zero;
(xxiii) Twenty-third, to the Class A-5-U Interest, 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 thereto;
(xxiv) Twenty-fourth, to the Class A-6-U Interest, in respect of interest,
up to an amount equal to the aggregate Class Interest Distribution
Amount thereof;
(xxv)Twenty-fifth, pro rata, in respect of interest, (A) to the Class
A-6-U Interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated thereto, (B) to the Class
A-6-U Strip Component, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-6-U Strip
Component and (C) to the Class A-6-U Strip Component, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class A-6-U Strip Component;
(xxvi) Twenty-sixth, to the Class A-6-U Interest, in reduction of the
Certificate Balance thereof, 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 thereof is reduced thereto;
(xxvii) Twenty-seventh, to the Class A-6-U Interest, 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 thereto;
(xxviii) Twenty-eighth, to the Class A-7-U Interest, in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount thereof;
(xxix) Twenty-ninth, pro rata, in respect of interest, (A) to the Class
A-7-U Interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated thereto, (B) to the Class
A-7-U Strip Component, up to an amount equal to the aggregate
Reduction Interest Distribution Amount of the Class A-7-U Strip
Component and (C) to the Class A-7-U Strip Component, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class A-7-U Strip Component;
(xxx)Thirtieth, to the Class A-7-U Interest, in reduction of the
Certificate Balance thereof, 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 thereof is reduced to zero;
(xxxi) Thirty-first, to the Class A-7-U Interest, 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 thereto;
(xxxii) Thirty-second, pro rata, to the Class B-1-U and Class B-1H-U
Interests, up to an amount equal to the aggregate Class Interest
Distribution Amounts thereof;
(xxxiii) Thirty-third, pro rata, to the Class B-1-U and Class B-1H-U
Interests, in respect of interest, up to an amount equal to the
aggregate Class Interest Shortfalls previously allocated thereto;
(xxxiv) Thirty-fourth, pro rata, to the Class B-1-U and Class B-1H-U
Interests, in reduction of the Certificate Balances thereof, 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;
(xxxv) Thirty-fifth, pro rata, to the Class B-1-U and Class B-1H-U
Interests, 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
(xxxvi) Thirty-sixth, to the Class R Certificates, but only to the extent
of Available Funds (other than any amounts of Available Funds
described in clauses (ii) and (iv) (with respect to Floor Withheld
Amounts) of the definition thereof, if any, remaining in the
Upper-Tier Distribution Account (other than in respect of the Class
P-IO-U Interest).
All references to pro rata in the preceding clauses with respect to
interest and Class Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distributions of
principal other than in reimbursement of Realized Losses shall mean pro rata
based on Certificate Balance, and with respect to distributions in reimbursement
of Realized Losses shall mean pro rata based on the amount of unreimbursed
Realized Losses previously allocated to the applicable Classes.
On each Distribution Date, the Trustee as holder of each Class of
Upper-Tier Regular Interests (other than the Class A-1A-U, Class A-1B-U, Class
A-1C-U, Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U, Class
A-7-U Strip Components and the Class P-IO-U Interest) shall receive
distributions of principal in an amount equal to the aggregate amount of
principal distributed to the Related Lower-Tier Regular Interests in a priority
corresponding to the order in which such distributions of principal are set
forth in Section 4.01(a). The Certificate Balance of each Class of Upper-Tier
Regular Interests will be reduced in accordance with such distributions of
principal and by the allocation of Realized Losses to such Classes.
(d) On each Distribution Date, the amount deposited in the Upper-Tier
Distribution Account in respect of the Class P-IO-L Interest shall be withdrawn
and deposited in the Certificate Distribution Account in respect of the Class
P-IO-U Interest.
(e) On each Distribution Date, Holders of each Class of Certificates (other
than the Class P-IO, Class R and Class LR Certificates) shall receive
distributions from amounts on deposit in the Certificate Distribution Account in
respect of interest and principal, other than in respect of the Class P-IO-U
Interest, (net of any amounts used to purchase substitute floor agreements as
described in Section 4.08 hereof) together with any amount of Available Funds
described in clauses (ii) and (iv) (in respect of Floor Withheld Amounts) of the
definition of Available Funds, in the amounts and in the order of priority set
forth below:
(i) First, pro rata, in respect of interest, to the Class A-1A, Class
A-1B, Class A-1C, Class CS-1, Class CS-2 and Class CS-3 Certificates,
up to an amount equal to the aggregate Class Interest Distribution
Amounts thereof;
(ii) Second, pro rata, to the Class A-1A, Class A-1B, Class A-1C, Class
CS-1, Class CS-2 and Class CS-3 Certificates, in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated thereto;
(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 thereof;
(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 thereof 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 thereof 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, 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 thereto;
(viii) Eighth, to the Class A-2 Certificates, in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(ix) Ninth, 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 thereto, (B) to the Class
CS-3 Certificates, up to an amount equal to the aggregate Reduction
Interest Distribution Amount of the Class A-2 Strip Component and (C)
to the Class CS-3 Certificates, up to an amount equal to the aggregate
unpaid Reduction Interest Shortfalls previously allocated to the Class
A-2 Strip Component;
(x) Tenth, to the Class A-2 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 thereof is reduced to
zero;
(xi) Eleventh, 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
thereto;
(xii)Twelfth, 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;
(xiii) Thirteenth, 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 thereto, (B) to the Class
CS-3 Certificates, up to an amount equal to the aggregate Reduction
Interest Distribution Amount of the Class A-3 Strip Component and (C)
to the Class CS-3 Certificates, up to an amount equal to the aggregate
unpaid Reduction Interest Shortfalls previously allocated to the Class
A-3 Strip Component;
(xiv)Fourteenth, to the Class A-3 Certificates, in reduction of the
Certificate Balance thereof, 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 thereof is reduced thereto;
(xv) Fifteenth, 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
thereto;
(xvi)Sixteenth, to the Class A-4 Certificates, in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(xvii) Seventeenth, pro rata, in respect of interest, (A) to the Class A-4
Certificates, Class Interest Shortfalls previously allocated thereto,
(B) to the Class CS-3 Certificates, up to an amount equal to the
aggregate Reduction Interest Distribution Amount of the Class A-4
Strip Component and (C) to the Class CS-3 Certificates, up to an
amount equal to the aggregate unpaid Reduction Interest Shortfalls
previously allocated to the Class A-4 Strip Component;
(xviii) Eighteenth, to the Class A-4 Certificates, in reduction of the
Certificate Balance thereof, 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 thereof is reduced to zero;
(xix)Nineteenth, 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 thereto;
(xx) Twentieth, to the Class A-5 Certificates, in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
thereof;
(xxi)Twenty-first, 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 thereto, (B) to the Class
CS-3 Certificates, up to an amount equal to the aggregate Reduction
Interest Distribution Amount of the Class A-5 Strip Component and (C)
to the Class CS-3 Certificates, up to an amount equal to the aggregate
unpaid Reduction Interest Shortfalls previously allocated to the Class
A-5 Strip Component;
(xxii) Twenty-second, to the Class A-5 Certificates, in reduction of the
Certificate Balance thereof, 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 thereof is reduced thereto;
(xxiii) Twenty-third, 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 thereof;
(xxiv) Twenty-fourth, to the Class A-6 Certificates, in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount thereof;
(xxv)Twenty-fifth, pro rata, in respect of interest, (A) to the Class A-6
Certificates, Class Interest Shortfalls previously allocated thereto,
(B) to the Class CS-3 Certificates, up to an amount equal to the
aggregate Reduction Interest Distribution Amount of the Class A-6
Strip Component and (C) to the Class CS-3 Certificates, up to an
amount equal to the aggregate unpaid Reduction Interest Shortfalls
previously allocated to the Class A-6 Strip Component;
(xxvi) Twenty-sixth, to the Class A-6 Certificates, in reduction of the
Certificate Balance thereof, 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 thereof is reduced to zero;
(xxvii) Twenty-seventh, to the Class A-6 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 thereto;
(xxviii) Twenty-eighth, to the Class A-7 Certificates, in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount thereof;
(xxix) Twenty-ninth, pro rata, in respect of interest, (A) to the Class A-7
Certificates, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated thereto, (B) to the Class
CS-3 Certificates up to an amount equal to the aggregate Reduction
Interest Distribution Amount of the Class A-7 Strip Component and (C)
to the Class CS-3 Certificates, up to an amount equal to the aggregate
unpaid Reduction Interest Shortfalls previously allocated to the Class
A-7 Strip Component;
(xxx)Thirtieth, to the Class A-7 Certificates, in reduction of the
Certificate Balance thereof, 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 thereof is reduced to zero;
(xxxi) Thirty-first, to the Class A-7 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 thereto;
(xxxii) Thirty-second, pro rata, to the Class B-1 and Class B-1H
Certificates, up to an amount equal to the aggregate Class Interest
Distribution Amounts thereof;
(xxxiii) Thirty-third, pro rata, to the Class B-1 and Class B-1H
Certificates, in respect of interest, up to an amount equal to the
aggregate Class Interest Shortfalls previously allocated thereto;
(xxxiv) Thirty-fourth, pro rata, to the Class B-1 and Class B-1H
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 prior clauses,
until the Certificate Balance of each such Class is reduced to zero;
and
(xxxv) Thirty-fifth, pro rata, to the Class B-1 and Class B-1H
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.
All references to pro rata in the preceding clauses with respect to
interest and Class Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distributions of
principal other than in reimbursement of Realized Losses shall mean pro rata
based on Certificate Balance, and with respect to distributions in reimbursement
of Realized Losses shall mean pro rata based on the amount of unreimbursed
Realized Losses previously allocated to the applicable Classes.
(f) On each Distribution Date, the amount deposited in the Certificate
Distribution Account in respect of the Class P-IO-U Interest shall be
distributed to the Class P-IO Certificates.
(g) (i) On each Distribution Date, following the distribution from the
Upper-Tier Distribution Account in respect of the Upper-Tier Regular Interests
pursuant to Section 4.01(g)(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 Certificate Distribution
Account pursuant to Section 3.05(d) 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 such Prepayment Premiums are available therefor:
(I) First, to the Class CS-1 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate (as defined below) for
the Class CS-1 Certificates plus the Spread Rate (as defined below)
for the Class CS-1 Certificates) of the aggregate interest that would
have been paid in respect of the Class CS-1 Certificates from the
Distribution Date occurring in the following month until the Notional
Balance of the Class CS-1 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 CS-1 Certificates plus
the Spread Rate for the Class CS-1 Certificates) of the aggregate
interest that will be paid in respect of Class CS-1 Certificates from
the Distribution Date occurring in the following month until the
Notional Balance of the Class CS-1 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 CS-2 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class CS-2
Certificates plus the Spread Rate for the Class CS-2 Certificates) of
the aggregate interest that would have been paid in respect of the
Class CS-2 Certificates from the Distribution Date occurring in the
following month until the Notional Balance of the Class CS-2
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 CS-2 Certificates plus the Spread Rate for
the Class CS-2 Certificates) of the aggregate interest that will be
paid in respect of Class CS-2 Certificates from the Distribution Date
occurring in the following month until the Notional Balance of the
Class CS-2 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 CS-3 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class CS-3
Certificates plus the Spread Rate for the Class CS-3 Certificates) of
the aggregate interest that would have been paid in respect of the
Class CS-3 Certificates from the Distribution Date occurring in the
following month until the Notional Balance of the Class CS-3
Certificates would have been reduced to zero had the related
prepayment not occurred, minus (B) the present value (discounted at
the Discount Rate for the Class CS-3 Certificates plus the Spread Rate
for the Class CS-3 Certificates) of the aggregate interest that will
be paid in respect of the Class CS-3 Certificates from the
Distribution Date occurring in the following month until the Notional
Balance of the Class CS-3 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-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).
(V) Fifth, 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
(VI) Sixth, 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 (VI) shall be distributed to holders of the Class
B-1H 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 Certificate Distribution Account pursuant to Section
4.01(g)(i), the Class A-1A-U Interest shall receive distributions in respect of
Prepayment Premiums distributable to the Class A-1A, Class A-1B, Class A-1C,
Class CS-1, Class CS-2, Class CS-3 and Class B-1H Certificates, regardless of
the reduction of the Certificate Balance of the Class A-1A-U Interest to zero.
(iii) On each Distribution Date, prior to the distributions to the
Upper-Tier Regular Interests from the Upper-Tier Distribution Account pursuant
to Section 4.01(g)(ii), the Class A-1A-L Interest shall receive distributions in
respect of Prepayment Premiums distributable to the Class A-1A-U Interest, the
Class A-1A-U Strip Component, the Class A-1B-U Interest, Class A-1B-U Strip
Component, the Class A-1C-U Interest, the Class A-1C-U Strip Component, the
Class A-2-U, Class A-3-U, Class A-4-U, Class A-5-U, Class A-6-U and Class A-7-U
Strip Components and the Class B-1H-U Interest, from amounts on deposit in the
Lower-Tier Distribution Account, regardless of the reduction of the Certificate
Balance of the Class A-1A-L Interest to zero.
(h) (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.
(iii) On any applicable Distribution Date following the purchase by
the Servicer of a substitute floor agreement pursuant to Section 4.08, any
amounts paid under any Floor Agreement by the counterparty thereof in the nature
of termination fees that are in excess of the amount applied by the Servicer to
the purchase of such substitute floor agreement shall be distributed to the
Class V-2 Certificates.
(i) 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-1-L
and Class B-1H-L Interests, pro rata, based on their respective Certificate
Balances; second to the Class A-7-L Interest; third, to the Class A-6-L
Interest; fourth, to the Class A-5-L Interest; fifth, to the Class A-4-L
Interest; sixth, to the Class A-3-L Interest; seventh, to the Class A-2-L
Interest and eighth, to the Class A-1A-L, Class A-1B-L and Class A-1C-L
Interests, pro rata, based on their respective Certificate Balances. Shortfalls
in Available Funds due to servicing or trustee compensation other than the
Servicing Fee and the Trustee Fee (including servicing compensation resulting
solely from interest on Advances (to the extent not payable from Default
Interest)), extraordinary expenses of the Trust Fund (other than indemnification
expenses), a reduction in the Mortgage Rate on a Mortgage Loan by a bankruptcy
court pursuant to a plan of reorganization or pursuant to any of its equitable
powers, Prepayment Interest Shortfalls, or otherwise, shall be allocated in the
same manner as Realized Losses.
Realized Losses and such other amounts described above which are applied to
each Class of Lower-Tier Regular Interest will be allocated to reduce the
Certificate Balance of the Related Upper-Tier Regular Interest and the Related
Certificates (and, correspondingly, to reduce the Component Balances of the
related components).
(j) 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.
(k) 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, or on the Related
Upper-Tier Regular Interests and Related Lower-Tier Regular Interests
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, Upper-Tier Regular Interests or Lower-Tier Regular Interests
outstanding and the Class B-1H Certificates 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.
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(k)
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(k). 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. In the event the Trustee is
permitted or required to invest any amounts in Permitted Investments under this
Agreement, whether in its capacity as Trustee or in the event of its assumption
of the duties of, or becoming the successor to, the Servicer in accordance with
the terms of this Agreement, it shall invest such amounts in the following
Permitted Investments and priority, in each case only for so long as any such
investment shall continue to be a Permitted Investment: (1) Associates Corp. of
North America Demand Notes, (2) GECC Demand Notes, (3) Dreyfus Treasury Prime
Cash Management Plus and (4) if none of (1)-(3) above are available, Permitted
Investments under clause (i) of the definition of Permitted Investments. The
Trustee shall indemnify the related Certificateholders against any loss incurred
in respect of any such Permitted Investment immediately upon realization of such
loss.
(l) 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(l). 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 Class
Interest Shortfalls, 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.
(m) The Component Balance of the Strip Components (other than the Class
A-1A, Class A-1B and Class A-1C Strip Components) shall be reduced on any
Distribution Date after the Certificate Balances of the Class B-1 and Class B-1H
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 and Class B-1H 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-7 Strip Component;
second, to the Class A-6 Strip Component; third, to the Class A-5 Strip
Component; fourth, to the Class A-4 Strip Component; fifth, to the Class A-3
Strip Component; and sixth, to the Class A-2 Strip Component. The Notional
Balance of the Class CS-3 Certificates shall be reduced to reflect reductions in
the Component Balance of the Class A-2 Strip Component, Class A-3 Strip
Component, Class A-4 Strip Component, Class A-5 Strip Component, Class A-6 Strip
Component and Class A-7 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
Reduction 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 Servicer, the Special
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 previous 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 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 an 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 amount paid under each Floor Agreement (separately stating any
termination payment and the amount paid for any substitute floor
agreement).
(xiv)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);
(xv) the amount of Prepayment Interest Shortfalls and Servicer Prepayment
Interest Shortfalls with respect to such Distribution Date; and
(xvi)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), (xiii) and (xiv) 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 a 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 and Section
4.07; (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 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 or the
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) through (iii) 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) and (iii) not permit the creation of any
"interests," within the meaning of the REMIC Provisions, in the Upper-Tier REMIC
other than the Upper-Tier Regular Interests and the Class R Certificates or in
the Lower-Tier REMIC other than the Lower-Tier Regular Interests and the Class
LR Certificates. None of the Servicer, the Special Servicer or the Depositor
shall be responsible or liable 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 Originator or the Depositor
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 the Collection Account in determining
the amount of Available Funds (or, if greater than the amount of Available
Funds, Class P-IO 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 to the Trustee
in respect of the Lower-Tier Regular Interests and the Upper-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.
<PAGE>
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 has been extended (other than
pursuant to Section 3.31) in accordance with the terms and conditions otherwise
set forth in this Agreement, the lesser of (1) the Extended Monthly Payment and
(2) the constant Monthly Payment on the Mortgage Loan prior to such extensions,
and (B) if such Mortgage Loan is not described by the preceding clause (A)
(including any such Mortgage Loan as to which the related Mortgaged Property has
become an REO Property), the Monthly Payment; 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 Net Mortgage
Pass-Through Rate plus the Trustee Fee Rate; and provided further that for
purposes of determining the amount of any P&I Advance, the Monthly Payment shall
be as reduced pursuant to any modification of a Mortgage Loan pursuant to
Section 3.31.
(b) On the Servicer Remittance Date immediately preceding each Distribution
Date, the Servicer shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Prepayment Premiums received by the
Servicer in the Collection Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Available Funds (other than amounts
described in clauses (ii) and (iv) (with respect to Floor Withheld
Amounts) of the definition thereof) and Class P-IO Available Funds;
(iii)make a P&I Advance, by deposit into the Lower-Tier 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
second day preceding the Servicer Remittance Date (and therefore are
not included in the remittance described in the preceding clause
(ii));
(iv) deposit from its own funds into the Lower-Tier Distribution Account an
amount equal to the sum of any Servicer Prepayment Interest Shortfalls
with respect to such Distribution Date; and
(v) remit to the Trustee for deposit in the Certificate Distribution
Account an amount equal the amounts described in clauses (ii) and (iv)
(with respect to Floor Withheld Amount) of definition of Available
Funds.
(c) [RESERVED]
(d) Notwithstanding Section 4.06(b)(iii), the Servicer shall (i) make only
one full advance in respect of each Mortgage Loan pursuant to such Section in
respect of the most subordinate Class of Certificates then outstanding (for
purposes of determining the most subordinate Class, the Class B-1 and Class B-1H
Certificates together shall be treated as one Class and the Class A-1A, Class
A-1B, Class A-1C, Class CS-1, Class CS-2 and Class CS-3 Certificates shall be
treated as one Class and the Class P-IO Certificates shall not be considered a
subordinate Class) and (ii) not make any P&I Advance in respect of Reduction
Interest Distribution Amounts and Reduction Interest Shortfalls, and
accordingly, the Servicer may reduce the aggregate amount of P&I Advances to be
deposited by the Servicer on the related Servicer Remittance Date in respect of
such amounts the Servicer is not required to advance. For purposes of clause (i)
of the preceding sentence, the Servicer shall reduce the amount of the P&I
Advance it would otherwise be required to make with respect to any Mortgage
Loans that have had more than one uncured Delinquency by the lesser of (a) the
total amount that would be distributable to the most subordinate outstanding
Class in respect of all Mortgage Loans on such Distribution Date if the Servicer
were to make a full P&I Advance and (b) the amount of the delinquent Monthly
Payments on such Mortgage Loans. In the event that there is more than one
Mortgage Loan that has had more than one uncured Delinquency as of any Servicer
Remittance Date and the amount determined pursuant to clause (b) of the
preceding sentence exceeds the P&I amount determined pursuant to clause (a)
thereof, the P&I Advance that the Servicer makes in respect of such Delinquent
Loans (i.e., the amount by which clause (b) exceeds clause (a) will be deemed to
have been made in respect of such delinquent Monthly Payment, pro rata in
accordance with the amounts of delinquent Monthly Payments. (The first P&I
Advance made by the Servicer in respect of a Mortgage Loan shall be deemed to be
in respect of the most subordinate Class for purposes of clause (i) of the
preceding sentence.) In addition, on any Servicer Remittance Date on which the
Servicer is not required to make a P&I Advance for the benefit of the most
subordinate class as described in the preceding sentence, the Servicer shall
initially make such P&I Advance (for accounting purposes only) and shall,
immediately subsequent to the making of the P&I Advance on such Servicer
Remittance Date, reimburse itself for such P&I Advance from amounts otherwise
distributable to such most subordinate class on the related Distribution Date
(such amount of reimbursement or any amount not advanced by the Servicer which,
if advanced, could have been so reimbursed, the "Subordinate Class Advance
Amount"). The Trustee shall provide to the Servicer written statements one
Business Day prior to the Servicer Remittance Date listing (i) the aggregate
Reduction Interest Distribution Amounts and Reduction Interest Shortfalls for
such Distribution Date and (ii) the distribution due to the Holders of the most
subordinate Class of Certificates.
(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 in respect of Applicable Monthly Payments on Mortgage Loans that
have been subject to an Appraisal Reduction Event will equal the product of (a)
the amount required to be advanced by the Servicer without giving effect to such
Appraisal Reduction Amounts and (b) 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 (with interest at the Advance Rate)
thereof to the full extent as otherwise set forth in this Agreement.
(g) If as of 9:00 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 11:00 a.m., 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 1:00 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 Extended 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 Upper-Tier Regular Interests, the Floor Agreements, the Floor Interest
Reserve Account and the Certificate Distribution Account, (ii) 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 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, (i) income and related expenses with respect to each respective
class of Upper-Tier Regular Interests and its related Floor Agreement, (ii) to
the Holders of the Class V-1 Certificates, income with respect to their
allocable 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), and (iii) to the Holders
of the Class V-2 Certificates, income with respect to their allocable share of
Excess Interest and from Floor Termination Payments in excess of amounts needed
to acquire substitute floor agreements, at the time or times and in the manner
required by the Code.
SECTION 4.08. Floor Agreement Administration.
-------------------------------
(a) The Servicer shall seek the enforcement of all of the Trustee's rights,
under each Floor Agreement. The Servicer shall collect all regular monthly
payments due under each Floor Agreement and shall remit such payments to the
Trustee for deposit in the Certificate Distribution Account. Each of the Floor
Agreements and Class of Certificates or Strip Component to which it relates is
identified in the following table:
------------------------------------ ----------------------------------
Class/Component Floor Confirmation Reference
------------------------------------ ----------------------------------
Class A-1A Floor 1 of 19
Class CS-1 Floor 2 of 19
Class A-1B Floor 3 of 19
Class CS-2 Floor 4 of 19
Class A-1C Floor 5 of 19
A-1C Component Floor 6 of 19
Class A-2 Floor 7 of 19
A-2 Component Floor 8 of 19
Class A-3 Floor 9 of 19
A-3 Component Floor 10 of 19
Class A-4 Floor 11 of 19
A-4 Component Floor 12 of 19
Class A-5 Floor 13 of 19
A-5 Component Floor 14 of 19
Class A-6 Floor 15 of 19
A-6 Component Floor 16 of 19
Class A-7 Floor 17 of 19
A-7 Component Floor 18 of 19
Class B-1 and B-1H Floor 19 of 19
------------------------------------ ----------------------------------
(b) The Trustee shall, on or before each Servicer Remittance Date, notify
the Floor Counterparty in writing of the amount due on such date under each
Floor Agreement.
(c) If a Floor Counterparty Default occurs under a Floor Agreement, or any
substitute floor agreement then in place, and as a result thereof the Floor
Counterparty, or substitute floor counterparty, as applicable, is obligated to
pay any Floor Termination Payment to the Trustee thereunder, the Servicer shall
collect such Floor Termination Payment. The Servicer shall use its best efforts
to cause the Trustee to enter into a substitute floor agreement having
substantially the same terms as such Floor Agreement, with a substitute floor
counterparty having the same ratings as the Floor Counterparty, which substitute
floor agreement, as evidenced by a letter of S&P, will not cause a
qualification, withdrawal or downgrade of the then-current ratings of the
Certificates by S&P, and shall apply the Floor Termination Payment as an
up-front payment, as and if necessary, required to be made to the substitute
floor counterparty in connection with the execution of such agreement. To the
extent that the Servicer receives the Floor Termination Payment prior to the
date on which it is required to pay such Floor Termination Payment to a
substitute floor counterparty, the Servicer shall remit such Floor Termination
Payment to the Trustee for deposit into the Certificate Distribution Account,
pending payment of such amount to the substitute floor counterparty. If the
Floor Termination Payment so paid by the Floor Counterparty or substitute floor
counterparty, as applicable, is not sufficient to pay the amount of the up-front
payment payable with respect to a substitute floor agreement having
substantially the same terms as the Floor Agreement with a substitute floor
counterparty having the same ratings as the Floor Counterparty, the Servicer
shall obtain such substitute floor agreement (if available) using other amounts
on deposit in the Certificate Distribution Account and the resulting shortfall
in Available Funds shall be allocated in the same manner as Realized Losses are
allocated. The Servicer will not be required to expend or advance any funds if
the Floor Termination Payment paid by the Floor Counterparty is insufficient to
obtain a substitute floor agreement having substantially the same terms as the
terminated Floor Agreement.
Any excess of the aggregate Floor Termination Payment paid by the Floor
Counterparty under all the Floor Agreements over the amount required to purchase
similar floor agreements will be distributed to the holders of the Class V-2
Certificates.
(d) In the event that a termination event occurs under any Floor Agreement
but no termination fee is payable thereunder (because then-current interest
rates result in a zero or negative market value for such Floor Agreement), the
Depositor shall (i) terminate its cap agreement with the Floor Counterparty
(pursuant to the comparable termination event) and (ii) cooperate with the
Servicer in entering into a new cap agreement with any substitute counterparty
that the Servicer identifies in order to facilitate the entry by such
counterparty into a substitute floor agreement with the Trustee in accordance
with paragraph (c) of this Section 4.08.
<PAGE>
ARTICLE V
THE CERTIFICATES
----------------
SECTION 5.01. The Certificates.
-----------------
The Certificates consist of the Class A-1A Certificates, the Class A-1B
Certificates, the Class A-1C Certificates, the Class CS-1 Certificates, the
Class CS-2 Certificates, the Class CS-3 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-5 Certificates, the Class A-6 Certificates, the Class A-7 Certificates, the
Class P-IO Certificates, the Class B-1 Certificates, the Class B-1H
Certificates, the Class V-1 Certificates, the Class V-2 Certificates, the Class
R Certificates and the Class LR Certificates.
The Class A-1A, the Class A-1B, Class A-1C, Class CS-1, Class CS-2, Class
CS-3, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class
P-IO, Class B-1, Class B-1H, 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 initial Certificate Balance or Notional Balance, as applicable, as
described in the succeeding table, and multiples of $1 in excess (or such lesser
amount if the Certificate Balance or Notional Balance 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 any Global Certificate, set forth on a schedule attached
thereto or, in the case of any beneficial interest in a Global Certificate, the
product of the Percentage Interest represented by such beneficial interest and
the Denomination of the related Global Certificate, (ii) expressed in terms of
initial Certificate Balance or Notional Balance, as applicable, and (iii) be in
an authorized denomination, as set forth below. With respect to each of the
Class P-IO, Class B-1 and Class B-1H Certificates, on the Closing Date, the
Trustee or the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall deliver (i) a Rule 144A global Class P-IO, Class B-1
and Class B-1H Certificate (the "Rule 144A Global Certificates") in definitive,
fully registered form without interest coupons, substantially in the forms of
Exhibits A-13, A-14 and A-15 hereto, (ii) a Regulation S global Class P-IO,
Class B-1 and Class B-1H Certificate (the "Regulation S Global Certificates") in
definitive, fully registered form without interest coupons, substantially in the
forms of Exhibits A-13, A-14 and A-15 hereto or (iii) one or more, if any,
Individual Certificates, substantially in the form of Exhibits A-13, A-14 and
A-15 hereto. Each Certificate will share ratably in all rights of the related
Class. The Class B-1H 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.
Aggregate Denominations of all
Minimum Certificates of Class (in Initial
Class Denomination Certificate Balance or Notional Balance)
----- ------------ ----------------------------------------
A-1A $ 50,000.00 $ 94,311,998
A-1B $ 50,000.00 $ 333,473,178
A-1C $ 50,000.00 $ 171,996,502
CS-1 $ 50,000.00 $ 94,311,998
CS-2 $ 50,000.00 $ 333,473,178
CS-3 $ 50,000.00 $ 431,603,494
A-2 $ 50,000.00 $ 35,807,861
A-3 $ 50,000.00 $ 35,807,861
A-4 $ 50,000.00 $ 44,759,826
A-5 $ 50,000.00 $ 22,379,913
A-6 $ 50,000.00 $ 49,235,809
A-7 $ 50,000.00 $ 71,615,722
B-1 $ 50,000.00 $ 35,806,865
B-1H $ 1,000.00 $ 1,000
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.
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 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 Certificateholders directly. The rights
of Beneficial Owners with respect to Global Certificates shall be limited to
those established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. 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.
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.
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.
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 Owners, through
the Depository of the occurrence of such event and the availability of
Individual Certificates to such Beneficial Owner or 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.
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.
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 P-IO,
Class B-1, Class B-1H, 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 which
information shall be provided on a timely basis to the Trustee by the Servicer.
For so long as the Class P-IO, Class B-1, Class B-1H, 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.
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-19 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 Certificate Registrar, the Servicer, the Trustee, 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 P-IO, Class B-1, Class B-1H, 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 the 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 its 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
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 the 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 its 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 Certificate Custodian,
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 Rule 144A 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 the 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 its 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 the 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 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 the 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 or 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 the 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
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-1H, 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-1H, 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 P-IO, Class B-1, Class
B-1H, 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 such Certificateholder desiring to effect such transfer
shall, and does hereby agree to, indemnify the Depositor, the Servicer, the
Trustee or 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-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class A-7, Class P-IO, Class B-1, Class B-1H, 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 C1 (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 C2 (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 5.13, 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 5.13 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 "A" by Fitch, S&P 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.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
----------------------------------------------------
SECTION 6.01. Liability of the Depositor and the 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.
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(a) 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 specific liability
imposed on the Servicer or the Special Servicer 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 incurred in
connection with any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense (including legal fees and expenses)
(i) incurred 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, in each case by the Person being indemnified; (ii) imposed by
any taxing authority if such loss, liability or expense is not specifically
reimbursable pursuant to the terms of this Agreement or (iii) with respect to
any such party, resulting from the breach by each party of any of its
representations or warranties contained herein. 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.
(b)The Servicer shall indemnify the Depositor and its Affiliates (the
"Nomura Group") from, and hold it harmless against, any and all losses,
liabilities, damages, claims, or expenses (including reasonable attorneys' fees)
the Nomura Group may sustain in connection with this Agreement or the
Certificates related to the negligence, fraud, bad faith, willful misconduct of
the Servicer.
SECTION 6.04. Limitation on Resignation of the Servicer or Special
Servicer; Termination of the Servicer or Special Servicer.
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(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) such assignment or
delegation will not, as confirmed by a letter from each Rating Agency delivered
to the Trustee, 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 Servicing Fee or Special Servicing 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 a good faith dispute 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 Servicing Fee or Special Servicing 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.
<PAGE>
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and 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.
<PAGE>
ARTICLE VII
DEFAULT
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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
Certificate Distribution Account, Lower-Tier Distribution Account,
Upper-Tier Distribution Account, Excess Interest Distribution Account,
Interest Reserve Account or Default Interest Distribution Account, any
amount required to be so remitted 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;
provided that the failure of the Servicer to perform any covenant or
agreement contained herein (other than as provided in clause (i)
above) as a result of an inconsistency between this Agreement and any
Loan Document shall not be a Servicer Event of Default hereunder to
the extent that the Servicer gives notice of any such inconsistency to
S&P; 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); provided, however, that in the event
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; or
(viii) the Servicer shall no longer be an "approved" servicer by each of
the Rating Agencies for mortgage pools similar to the Trust Funds;
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;
(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; or
(vii)the Special Servicer shall no longer be an "approved" Servicer by
each of the Rating Agencies for mortgage pools similar to the Trust
Fund;
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 the Servicer or Special Servicer 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 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 agrees that, 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 successor 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 predecessor 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 successor Special Servicer shall be entitled to the Servicing Fee 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 the Trustee is not approved by S&P as a servicer or special
servicer 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 when the Servicer is also serving as Special Servicer,
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.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
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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 but shall not be relieved of its obligations hereunder.
(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 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, the Servicer, or the Special
Servicer, and the Trustee, the Fiscal Agent, the Servicer and Special Servicer
assume no responsibility for their correctness. The Trustee, the Fiscal Agent,
the Servicer and Special 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 or the Special 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 or Special Servicer pursuant to Section 7.02) or any subservicer or
any Borrower; any action of the Servicer or Special 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, Certificate Distribution Account, Lower-Tier Distribution
Account, Upper-Tier Distribution Account, Default Interest Distribution Account,
Excess Interest Distribution Account, Lock Box Account, Cash Collateral Account,
Prime Retail Treasury Collateral Account, Reserve Accounts, Interest Reserve
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 Fiscal Agent, as
applicable. Neither the Trustee nor the Fiscal Agent shall have 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 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 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 S&P 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 S&P and "Aa2" by Moody's (without regard to any plus or minus or
numeric qualifier) the rating on the unsecured long term debt of the Trustee
must be at least "AA" by Fitch and S&P and "Aa2" by Moody's, or meet 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 Fitch, LaSalle
National Bank shall not fail to qualify as Trustee solely by virtue of the lack
of such ratings until such time as 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, the appointment of which would not, as evidenced in
writing, in and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates, and a successor Fiscal
Agent (if necessary to satisfy the requirements contained in Section 8.06), the
appointment of which, if the successor Trustee is not rated by each Rating
Agency in one of its two highest long-term debt rating categories, would not, as
evidenced in writing, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates), 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, or upon
a confirmation in writing by any Rating Agency that not terminating the Trustee,
or the Fiscal Agent, as applicable, would, in and of itself, cause the
then-current rating assigned to any class of Certificates to be qualified,
withdrawn or downgraded, 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 accrued 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, successor Fiscal Agent as provided in Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
-----------------------------------
(a) Any successor Trustee and any successor 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 the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates. 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 satisfy the eligibility requirements set forth in Section 8.06
hereof.
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 be in existence or 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 or for a breach of a representation or warranty contained herein;
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).
<PAGE>
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 Fees, 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 or to the sale of the Floor Contracts, 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 Upper-Tier Regular
Interests and the Lower-Tier Regular Interests notwithstanding that such
distribution may be insufficient to distribute in full the Certificate Balance
of each Certificate, Upper-Tier Regular Interest or Lower-Tier Regular Interest,
together with amounts required to be distributed on such Distribution Date
pursuant to Section 4.01(a), (b), (c), (d), (e) 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 R Certificateholders of any amount remaining in the
Upper-Tier Distribution Account. 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 Fees, 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.
<PAGE>
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 V-1, Class V-2, Class B-1H, 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:
<PAGE>
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-MD VI
With copies to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue
Suite 6500
Washington, D.C. 20006
Attention: Stuart P. Pergament
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-MD VI
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 or the Special 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 2400
Dallas, Texas 75201
Attention: General Counsel
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Paul T. Cohn
<PAGE>
If to the Originator, 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, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account or the
Certificate 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; and
(xi) 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, any 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:
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
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Attention: Commercial Mortgage Surveillance
or in each case to such other address as any 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, (v) to amend or
supplement any provisions therein to the extent necessary or desirable to
maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 of the Grantor Trust
as a grantor trust, 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, will not 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) or will not cause
the Grantor Trust to fail to qualify as a grantor trust.
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 Certificate Distribution Account,
Lower-Tier Distribution Account, Upper-Tier Distribution 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 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
- -----------------------------
Print Name:
By:-----------------------------
- ----------------------------- Name:
Print Name: Title:
Signed and acknowledged AMRESCO MANAGEMENT, INC.,
in the presence of as Servicer
- ----------------------------- By:----------------------
Print Name: Name:
Title:
- -----------------------------
Print Name:
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 of the Trustee as Fiscal Agent of the Trustee
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:
Acknowledged by Nomura Asset Capital
Corporation, Solely with respect to
Section 3.28 and Section 3.29(o),
NOMURA ASSET CAPITAL CORPORATION
By:--------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this --th day of December, 1996, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Perry Gershon, to me known who, by me duly sworn, did depose and
acknowledge before me and say that he resides at Two World Financial Center, New
York, New York; that he is the Vice President of ASSET SECURITIZATION
CORPORATION, a Delaware corporation, 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: Patrick T. Quinn
Address: 100 Maiden Lane
New York, New York 10038]
<PAGE>
STATE OF GEORGIA )
)ss:
COUNTY OF FULTON )
On this ---- day of December, 1996, before me, the undersigned, a Notary
Public in and for the State of Georgia, 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
- ----------------------------------; 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: Patrick T. Quinn
Address: 100 Maiden Lane
New York, New York 10038]
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this --th day of December, 1996, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Mary --. Collier, to me known who, by me duly sworn, did depose and
acknowledge before me and say that he resides at ---------------, Lisle,
Illinois; that she 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: Patrick T. Quinn
Address: 100 Maiden Lane
New York, New York 10038]
<PAGE>
STATE OF ILLINOIS )
)ss:
COUNTY OF ----------- )
On this --th day of December, 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 he resides at -------------, -------------,
Illinois; that 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 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 Illinois
My Commission expires:
(stamp)
(seal)
[This instrument prepared by:
- ---------------------------
Name: Patrick T. Quinn
Address: 100 Maiden Lane
New York, New York 10038]
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 ORIGINATOR, THE 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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-1A
Pass-Through Rate: 6.72000%
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1A Certificates: November 13, 2026
$94,311,998
CUSIP: 045424 CU0 ISIN: US 045424CU05
Common Code: 7225377 Initial Certificate
Balance of this Certificate:
$94,311,998
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
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 January, 1997 (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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1A Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
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
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 ORIGINATOR, THE 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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-1B
Pass-Through Rate: 6.88000%
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1B Certificates: November 13, 2026
$333,473,178
CUSIP: 045424 CV8 ISIN: USO45424 CV87
Common Code: 7225407 Initial Certificate
Balance of this Certificate:
$333,473,178
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
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 January, 1997 (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. 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-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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-1B Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
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
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 ORIGINATOR, THE 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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-1C
Pass-Through Rate: 7.04000%
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1C Certificates: November 13, 2026
$171,996,502
CUSIP: 045424 CW6 ISIN: US045424 CW60
Common Code: 7225431 Initial Certificate
Balance of this Certificate:
$171,996,502
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
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 January, 1997 (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. 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-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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-1C Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
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
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 ORIGINATOR, THE 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 NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE INITIAL NOTIONAL 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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON DECEMBER 17, 1996, AT AN ISSUE PRICE OF 4.63051%
OF THE INITIAL CLASS CS-1 NOTIONAL BALANCE 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 SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED DECEMBER 10, 1996 WITH RESPECT TO THE OFFERING OF THE CLASS A-1A, CLASS
A-1B, CLASS A-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, CLASS A-2, CLASS A-3,
CLASS A-4, CLASS A-5, CLASS A-6 AND CLASS A-7 CERTIFICATES) USED TO PRICE THIS
CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE
WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
INITIAL CLASS CS-1 NOTIONAL BALANCE IS APPROXIMATELY 1.09263914%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.54%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (DECEMBER 17, 1996 TO JANUARY 13, 1997) AS A PERCENTAGE OF THE
INITIAL CLASS CS-1 NOTIONAL BALANCE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.02854137%.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS CS-1
Pass-Through Rate: 1.25795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class CS-1 Certificates: November 13, 2026
$94,311,998
CUSIP: 045424 CX4 ISIN: US045424 CX44
Common Code: 7225458 Initial Notional
Balance of this Certificate:
$94,311,998
No.: CS-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 CS-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-2, Class CS-3, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
CS-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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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 CS-1 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 CS-1 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Notional 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Notional 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 Notional 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 CS-1 Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
-------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class CS-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
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 CS-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 CS-1
Certificate of the entire Percentage Interest represented by the within Class
CS-1 Certificates to the above-named Assignee(s) and to deliver such Class CS-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
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 ORIGINATOR, THE 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 NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE INITIAL NOTIONAL 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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON DECEMBER 17, 1996, AT AN ISSUE PRICE OF 6.99325%
OF THE INITIAL CLASS CS-2 NOTIONAL BALANCE 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 SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED DECEMBER 10, 1996 WITH RESPECT TO THE OFFERING OF THE CLASS A-1A, CLASS
A-1B, CLASS A-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, CLASS A-2, CLASS A-3,
CLASS A-4, CLASS A-5, CLASS A-6 AND CLASS A-7 CERTIFICATES) USED TO PRICE THIS
CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE
WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
INITIAL CLASS CS-2 NOTIONAL BALANCE IS APPROXIMATELY 2.27418351%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.08%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (DECEMBER 17, 1996 TO JANUARY 13, 1997) AS A PERCENTAGE OF THE
INITIAL CLASS CS-2 NOTIONAL BALANCE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.04081155%.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS CS-2
Initial Pass-Through Rate: 1.09795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class CS-2 Certificates: November 13, 2026
$333,473,178
CUSIP: 045424 CY2 ISIN: US 045424 CY27
Common Code: 7225466 Initial Notional
Balance of this Certificate:
$333,473,178
No.: CS-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 CS-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-3, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
CS-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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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 CS-2 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 CS-2 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Notional 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Notional 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 Notional 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 CS-2 Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
-------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class CS-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
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 CS-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 CS-2
Certificate of the entire Percentage Interest represented by the within Class
CS-2 Certificates to the above-named Assignee(s) and to deliver such Class CS-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
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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 NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE INITIAL NOTIONAL 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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN SEVEN "REGULAR INTERESTS" 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, AND
CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON DECEMBER 17, 1996, AT AN ISSUE PRICE OF 7.12573%
OF THE INITIAL CLASS CS-3 NOTIONAL BALANCE 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 SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED DECEMBER 10, 1996 WITH RESPECT TO THE OFFERING OF THE CLASS A-1A, CLASS
A-1B, CLASS A-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, CLASS A-2, CLASS A-3,
CLASS A-4, CLASS A-5, CLASS A-6 AND CLASS A-7 CERTIFICATES) USED TO PRICE THIS
CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE
WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
INITIAL CLASS CS-3 NOTIONAL BALANCE IS APPROXIMATELY 3.68830328%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.19%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (DECEMBER 17, 1996 TO JANUARY 13, 1997) AS A PERCENTAGE OF THE
INITIAL CLASS CS-3 NOTIONAL BALANCE, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.04211401%.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS CS-3
Pass-Through Rate: 0.90112%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class CS-3 Certificates: November 13, 2026
$431,603,494
CUSIP: 045424 CZ9 ISIN: US045424 CZ91
Common Code: 7225598 Initial Notional
Balance of this Certificate:
$431,603,494
No.: CS-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 CS-3 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
CS-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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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
seven "regular interests" 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in 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 January, 1997 (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 CS-3 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 CS-3 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Notional 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Notional 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 Notional 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 CS-3 Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
-------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class CS-3 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
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 CS-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 CS-3
Certificate of the entire Percentage Interest represented by the within Class
CS-3 Certificates to the above-named Assignee(s) and to deliver such Class CS-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
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 ORIGINATOR, THE 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.
THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B CLASS
1-1C, CLASS CS-1, CLASS CS-2 AND CLASS CS-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.
THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
1-1C, CLASS CS-1, CLASS CS-2 AND CLASS CS-3 CERTIFICATES AS AND TO THE EXTENT
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-2
Pass-Through Rate: 6.83795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: November 13, 2026
$35,807,861
CUSIP: 045424 DA3 ISIN: US045424 DA32
Common Code: 7225610 Initial Certificate
Balance of this Certificate:
$35,807,861
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in 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 January, 1997 (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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-2 Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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
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 ORIGINATOR, THE 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.
THIS CLASS A-3 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B CLASS
1-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-3
Pass-Through Rate: 6.88795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-3 Certificates: November 13, 2026
$35,807,861
CUSIP: 045424 DB1 ISIN: US045424 DB15
Common Code: 7225636 Initial Certificate
Balance of this Certificate:
$35,807,861
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-3 Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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
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 ORIGINATOR, THE 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.
THIS CLASS A-4 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
1-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-4
Pass-Through Rate: 6.92795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-4 Certificates: November 13, 2026
$44,759,826
CUSIP: 045424 DC9 ISIN: US045424 DC97
Common Code: 7225652 Initial Certificate
Balance of this Certificate:
$44,759,826
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 Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-5, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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. 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-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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 Trustee and the
Fiscal Agent with the consent of the Holders of the Regular Certificates
evidencing not less than 662/3% 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-4 Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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
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 ORIGINATOR, THE 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.
THIS CLASS A-5 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
1-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-5
Pass-Through Rate: 6.95795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-5 Certificates: November 13, 2026
$22,379,913
CUSIP: 045424 DD7 ISIN: US045424 DD70
Common Code: 7225695 Initial Certificate
Balance of this Certificate:
$22,379,913
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-6, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-5 Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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
EXHIBIT A-11
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 ORIGINATOR, THE 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.
THIS CLASS A-6 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
1-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-6
Pass-Through Rate: 7.10795%*
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-6 Certificates: November 13, 2026
$49,235,809
CUSIP: 045424 DE5 ISIN: US045424 DE53
Common Code: 7225709 Initial Certificate
Balance of this Certificate:
$49,235,809
No.: A-6-
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-6 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-7, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
A-6 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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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-6 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-6 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-6 Certificate to
be duly executed.
Dated: December 17, 1996
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-6 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
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-6 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-6
Certificate of the entire Percentage Interest represented by the within Class
A-6 Certificates to the above-named Assignee(s) and to deliver such Class A-6
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
EXHIBIT A-12
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 ORIGINATOR, THE 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.
THIS CLASS A-7 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
1-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, CLASS A-2, CLASS A-3, CLASS A-4, CLASS
A-5 AND CLASS A-6 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS A-7
Initial Pass-Through Rate: 7.48795%
First Distribution Date: Cut-off Date:December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-7 Certificates: November 13, 2026
$71,615,722
CUSIP: 045424 DF2 ISIN: US045424 DF29
Common Code: 7225725 Initial Certificate
Balance of this Certificate:
$71,615,722
No.: A-7-
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-7 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class P-IO, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
A-7 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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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, and certain other assets.
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 January, 1997 (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-7 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-7 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; and (xii) 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 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 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 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 at the 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 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 of the 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 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 REMICs 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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-7 Certificate to
be duly executed.
Dated: December 17, 1996
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-7 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
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-7 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-7
Certificate of the entire Percentage Interest represented by the within Class
A-7 Certificates to the above-named Assignee(s) and to deliver such Class A-7
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
EXHIBIT A-13
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 ORIGINATOR, THE 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 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 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.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS P-IO CERTIFICATE IS SUBORDINATE TO THE OTHER CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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-MD VI, CLASS P-IO
First Distribution Date: Cut-off Date: December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class P-IO Certificates: November 13, 2026
$358,748,252
CUSIP: 045424 DK1 Variable
No.: P-IO-
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 P-IO Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class B-1, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
P-IO 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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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 January, 1997 (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 P-IO 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 P-IO 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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.
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IN WITNESS WHEREOF, the Trustee has caused this Class P-IO Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
-------------------------------------
Authorized Officer
Certificate of Authentication
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This is one of the Class P-IO Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Authenticating Agent
By:
-------------------------------------
Authorized Officer
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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 P-IO 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 P-IO
Certificate of the entire Percentage Interest represented by the within Class
P-IO Certificates to the above-named Assignee(s) and to deliver such Class P-IO
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: ----------- ----------------------------
Signature by or on behalf of
Assignor(s)
-----------------------------
Taxpayer Identification Number
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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
EXHIBIT A-14/A
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 ORIGINATOR, THE 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 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 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.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS B-1 CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, CLASS A-2, CLASS A-3, CLASS A-4, CLASS
A-5, CLASS A-6 AND CLASS A-7 CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON DECEMBER 17, 1996, AND BASED ON ITS ISSUE PRICE OF
90.49450% AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, 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 SCENARIO 1 (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT DATED DECEMBER 10, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS CS-1, CLASS CS-2,
CLASS CS-3, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5, CLASS A-6 AND CLASS A-7
CERTIFICATES) USED TO PRICE THIS CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE
HEREON CHANGES IN ACCORDANCE WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 9.50549700%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.60%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (DECEMBER 17, 1996 TO JANUARY
13, 1997) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.09932409%.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS B-1
REGULATION S GLOBAL CERTIFICATE
Pass-Through Rate: 7.97795%*
First Distribution Date: Cut-off Date: December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-1 Certificates: November 13, 2026
$0.00
CINS: U04509 BJ0 ISIN: USU04509 BJ09
Common Code: 7226934 Initial Certificate
Balance of this Certificate:
$0.00
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 l986, as amended,
and certain other assets.
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* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 B-1 Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
-------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Authenticating Agent
By:
-------------------------------------
Authorized Officer
<PAGE>
<TABLE>
<CAPTION>
Schedule A
Certificate Balance of Individual
Certificates or Rule 144A
Global Certificate exchanged or
transferred for, or issued in
exchange for or upon transfer
of, an interest in this Remaining Principal Amount of
Regulation S Global Certificate this Regulation S Global Notation
Date Certificate Made By
<S> <C> <C> <C>
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</TABLE>
<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
EXHIBIT A-14/B
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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 CS-1, CLASS CS-2, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5, CLASS
A-6 AND CLASS A-7 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 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.
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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON DECEMBER 17, 1996, AND BASED ON ITS ISSUE PRICE OF
90.49450% AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, 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 SCENARIO 1 (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT DATED DECEMBER 10, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS CS-1, CLASS CS-2,
CLASS CS-3, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5, CLASS A-6 AND CLASS A-7
CERTIFICATES) USED TO PRICE THIS CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE
HEREON CHANGES IN ACCORDANCE WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 9.50549700%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.60%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (DECEMBER 17, 1996 TO JANUARY
13, 1997) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.09932409%.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS B-1
RULE 144A GLOBAL CERTIFICATE
Pass-Through Rate: 7.97795%*
First Distribution Date: Cut-off Date: December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-1 Certificates: November 13, 2026
$35,806,865
CUSIP: 045424 DG0 ISIN: US 045424DG02
Initial Certificate
Balance of this Certificate:
$35,806,865
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 first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 l986, as amended,
and certain other assets.
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* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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.
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IN WITNESS WHEREOF, the Trustee has caused this Class B-1 Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
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Authorized Officer
Certificate of Authentication
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This is one of the Class B-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Authenticating Agent
By:
-------------------------------------
Authorized Officer
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<TABLE>
<CAPTION>
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, an interest in this Remaining Principal Amount of
Rule 144A Global Certificate this Rule 144A Global Notation
Date Certificate Made By
<S> <C> <C> <C>
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</TABLE>
<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
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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
EXHIBIT A-15
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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-1H CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS
A-1C, CLASS CS-1, CLASS CS-2, CLASS CS-3, CLASS A-2, CLASS A-3, CLASS A-4, CLASS
A-5, CLASS A-6 AND CLASS A-7 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 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.
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 PRO
RATA UNDIVIDED BENEFICIAL INTEREST IN 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, AND CERTAIN
OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON DECEMBER 17, 1996, AND BASED ON ITS ISSUE PRICE OF
90.49434% AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, 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 SCENARIO 1 (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT DATED DECEMBER 10, 1996 WITH RESPECT TO
THE OFFERING OF THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS CS-1, CLASS CS-2,
CLASS CS-3, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5, CLASS A-6 AND CLASS A-7
CERTIFICATES) USED TO PRICE THIS CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE
HEREON CHANGES IN ACCORDANCE WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 9.50565800%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.60%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (DECEMBER 17, 1996 TO JANUARY
13, 1997) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.09932439%.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS B-1H
Pass-Through Rate: 7.97795%*
First Distribution Date: Cut-off Date: December 17, 1996
January 15, 1997
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-1H Certificates: November 13, 2026
$1,000.09
CUSIP: 045424 DL9
Initial Certificate
Balance of this Certificate:
$1,000.09
No.: B-1H -
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-1H Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
B-1H 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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 l986, as amended,
and certain other assets.
- ----------
* The Pass-Through Rate is for the Distribution Date occurring in January
1997. The Pass-Through Rate for all subsequent Distribution Dates shall be
calculated as provided in the Pooling and Servicing Agreement.
<PAGE>
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 January, 1997 (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-1H 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-1H 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 January
10, 1997. Interest for each Interest Accrual Period, other than the Interest
Accrual Period with respect to the Distribution Date occurring in January 1997,
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
January 1997 shall consist of the actual number of 24 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 Trustee and the
Fiscal Agent with the consent of the Holders of the Regular Certificates
evidencing not less than 662/3% 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 B-1H Certificate to
be duly executed.
Dated: December 17, 1996
LASALLE NATIONAL BANK, not in its individual capacity
but solely as Trustee
By:
-------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-1H Certificates referred to in the Pooling and
Servicing Agreement.
Dated: December 17, 1996
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-1H 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-1H
Certificate of the entire Percentage Interest represented by the within Class
B-1H Certificates to the above-named Assignee(s) and to deliver such Class B-1H
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
EXHIBIT A-16
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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 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 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.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
<PAGE>
ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD VI, CLASS V-1
CUSIP: 045424 DM7 Percentage Interest: 100%
No.: V-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 V-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1, Class B-1H, Class V-2, Class R and Class LR Certificates (together with the
V-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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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 January, 1997 (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 Net Default Interest then distributable, 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 Trustee and the
Fiscal Agent with the consent of the Holders of the Regular Certificates
evidencing not less than 662/3% 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 V-1 Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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
EXHIBIT A-17
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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 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.
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-MD VI, CLASS V-2
Percentage Interest: 100%
CUSIP: 045424 DN5
No.: V-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 V-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1, Class B-1H, Class V-1, Class R and Class LR Certificates (together with the
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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 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 January, 1997 (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 Excess Interest then distributable, 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 V-2 Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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 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
EXHIBIT A-18
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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 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.
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-MD VI, CLASS R
Percentage Interest: 100%
CUSIP: 045424 DH8 ISIN: USU04509 DH84
No.: R-
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 R Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1, Class B-1H, Class V-1, Class V-2 and Class LR Certificates (together with
the 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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 l986, as amended,
and certain other assets.
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 January, 1997 (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 R 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 R Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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 R 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 R
Certificate of the entire Percentage Interest represented by the within Class
R Certificates to the above-named Assignee(s) and to deliver such Class R
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
EXHIBIT A-19
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE 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 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.
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-MD VI, CLASS LR
Percentage Interest: 100%
CUSIP: 045424 DJ4 ISIN: USU 04509 DJ41
No.: LR-
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 LR Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Servicer. 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 CS-1, Class CS-2, Class CS-3, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class P-IO, Class
B-1, Class B-1H, Class V-1, Class V-2 and Class R Certificates (together with
the 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 December 17, 1996 (the "Pooling
and Servicing Agreement"), by and among Asset Securitization Corporation, as
Depositor, AMRESCO Management, Inc., as 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 l986, as amended,
and certain other assets.
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 January, 1997 (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 LR 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 January 1997, 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 Prime Retail Treasury
Collateral Account, the Collection Account, the Certificate Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Mortgage Interest Reserve Account, the Floor 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; (xi) the Floor
Agreements; (xii) 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); and (xiii) the rights to payments under the Interest Rate Cap
Agreements. 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 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 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 herein or therein that may be defective or inconsistent with any
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 in such
agreements 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, (v) to amend or supplement
any provisions of any Custodial Agreement to the extent necessary or desirable
to maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) 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 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 of the 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 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 REMICs as two separate
REMICs or of the Grantor Trust as a grantor trust, 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 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
(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, with interest
thereon at the Advance Rate, and unpaid Servicing Fees, 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 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 LR Certificate to
be duly executed.
Dated: December 17, 1996
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: December 17, 1996
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
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Cut-Off Date Monthly Debt Service Mortgage Maturity Property Manager
Principal Loan Rate Date
Baloance
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Columbia $135,230,640 $1,212,279.81 8.870% 8/11/16 Grandview Hotel Limited
Sussex II Partnership
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Horizon II $ 99,217,643 $ 803,280.95 9.060% 10/11/26 Second Horizon Group Limited
Partnership
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
MHP II $266,000,000 $2,261,488.30 8.220% 10/11/17 Marriot Hotel Properties II
Limited Partnership and Santa
Clara Marriott Hotel Limited
Partnership
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Palmer Square $ 36,000,000 $ 280,003.58 8.090% 12/11/21 Nassau Inn Limited Partnership
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Prime Retail II $358,748,252 $2,579,863.10 7.782% 11/11/26 Prime Retail, L.P.
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Total $897,196,535 $4,815,038.94
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
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 - MD VI, 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 December 17, 1996, by and
among Asset Securitization Corporation, as depositor, AMRESCO Management, Inc.,
as servicer and 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--.
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
[CERTIFICATE REGISTRAR]
Re: Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1996 - MD VI
-------------------------------------------------------
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]
--------------------
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street, 17th Floor
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-MD VI, Class [ ]
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of December 17, 1996 (the "Pooling and Servicing
Agreement"), by and among Asset Securitization Corporation, as depositor,
AMRESCO Management, Inc., as servicer and 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 - MD VI (the
"Certificates") in connection with the transfer by ----------------- (the
"Seller") to the undersigned (the "Purchaser") of $--------------- aggregate
Certificate Balance of Class --- Certificates, in certificated fully registered
form (such registered interest being the "Certificate"). 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:
[[For Institutional Accredited Investors only] 1. 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] 1. 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. 1. 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
December 17, 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:*
- ------------
* Each Purchaser must include one of the two alternative certifications.
----- 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 Certificate Registrar (or its agent) with respect
to Distributions to be made on the Certificate(s). 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(s) 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(s) and state
that interest and original issue discount on the U.S. Securities,
the Certificate Registrar Priority Securities and Eligible
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 citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any of its
political subdivisions, or an estate or trust the income of which is subject to
U.S. federal income taxation regardless of its source.
<PAGE>
Please make all payments due on the Certificates:**
- ------------
** 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.
- ----- (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefore:
Account number --------- Institution ------------------
- ----- (b) by mailing a check or draft to the following address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Very truly yours,
-------------------------------
[The Purchaser]
By:
---------------------------
Name:
Title
Dated: ---- --, ----
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
---------- --, ----
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street, 17th Floor
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 - MD VI, Class [B-1, B-1H, P-IO, V-1, V-2, R, LR]
---------------------------------------------------------------------------
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 - MD VI, Class [B-1,
B-1H, P-IO, V-1, V-2, R, LR], CUSIP No. 045424--------- (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of December 17, 1996, by and among Asset
Securitization Corporation, as depositor (the "Depositor"), AMRESCO Management,
Inc., as servicer and 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:--------------------------------
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 - MD VI
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 - MD VI,
the documents referred to below (the "Documents"). All capitalized terms of 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 December 17, 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 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--
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
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
December 17, 1996, among Asset Securitization Corporation, as Depositor, the
Servicer, the Trustee and ABN AMRO Bank N.V., as Fiscal Agent, relating to Asset
Securitazation Corporation, Commmercial Mortgage Pass-Through Certificates,
Series 1996 - MD VI (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 days 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:-------------------------------------------
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 - MD VI, Class [ ]
---------------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of December 17, 1996 (the "Pooling and Servicing
Agreement"), by and among Asset Securitization Corporation, as depositor,
AMRESCO Management, Inc., as servicer and 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 Securizitation Corporation, Commercial
Mortgage Pass-Through Certificates, 1996 - MD VI, 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.
<PAGE>
(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--
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.
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 - MD VI Class [ ]
---------------------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
December 17, 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.
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:
- -----------------------
* Select appropriate depository.
<PAGE>
(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,]**
(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: -------------, ----
- ----------------------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
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 - MD VI, Class [ ]
--------------------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
December 17, 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,
<PAGE>
[(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,]*
(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: ------------ --, ----
- --------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
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 - MD VI, Class [ ]
---------------------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
December 17, 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.
<PAGE>
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 an 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--
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") dated as
of December 17, 1996 (the "Cut-off Date") 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, 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 December 1, 1996 (the
"Pooling and Servicing Agreement"), among the Company, AMRESCO Management, Inc.,
as servicer (the "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-MD VI (the "Certificates"). 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
December 17, 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 December 17, 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 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 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, including all interest and principal
due on or with respect to the Mortgage Loans on or 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. 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.
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;
(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; and
(vi) The Originator is approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act.
(b) The Seller hereby represents and warrants with respect to each
Mortgage Loan, except as disclosed in Exhibit A, that as of the date specified
below or, if no such date is specified, as of the Closing Date:
(i) Immediately prior to the transfer and assignment to the Company,
each related Note and Mortgage was not subject to an assignment
(other than to the Seller) or pledge, and the Seller had good
title to, and was the sole owner of, such Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan;
(iii) The Seller 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 subject to 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);
(v) Each related Assignment of Leases and Rents, if any, creates a
valid, first priority assignment of, or a valid first priority
security interest in, certain rights under the related leases,
subject only to a license granted to the related Borrower to
exercise certain rights and to perform certain obligations of the
lessor under such leases, 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 leases
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 constitutes the legal, valid and binding assignment of
such 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, such Mortgage Loan has not been waived, 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 that 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, as of the date of the origination of
such Mortgage Loan, 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 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 Originator, its successors and assigns, or the holder of the
related Note as to a valid and first priority lien on the related
Mortgaged Property and the first priority lien of the Mortgage in
at least the original principal amount of such Mortgage Loan or
Allocated Loan Amount of the related Mortgaged Property (as set
forth on the Mortgage Loan Schedule which is an exhibit to the
Pooling and Servicing Agreement) after all advances of principal,
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 or operation of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
related 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 related Borrower's ability to pay its obligations when
they become due or the value, use or operation of the Mortgaged
Property; the Seller or its successors or assigns is the sole
named insured of such policy, and such policy 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, that would impair or
diminish the coverage of such policy; to the extent required by
applicable law, the insurer issuing such policy is qualified to
do business in the jurisdiction in which the related Mortgaged
Properties are located;
(xii) The proceeds of such Mortgage Loan have been fully disbursed
(except for Funds in the Prime Retail II Pool Loan Expansion
Account, which has been fully funded but not 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) Based on inspection reports contained in the related Mortgage
File, each related Mortgaged Property is free of any material
damage for which amounts at least sufficient to cure such damage
have not been reserved or that would affect materially and
adversely the value of such Mortgaged Property as security for
the Mortgage Loan and is in good repair, and there is no
proceeding pending for the total or partial condemnation of such
Mortgaged Property;
(xiv) Each of the related Borrowers is in possession of all material
licenses, permits and other authorizations necessary and required
by all applicable laws for the conduct of its business that if
not obtained would have a material adverse effect on the conduct
of its business or its ability to repay the related Mortgage
Loan, 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 hotel, the most recent inspection or review by
the franchiser, if any, did not cite such Mortgaged Property for
material violations of the related franchise agreement which have
not been cured;
(xv) The Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months preceding the
Cut-off Date;
(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 no other party holds a
participation interest in the Mortgage Loan. Neither the
Originator nor any of its affiliates has or is entitled to any
preferred or any other direct equity interest in a Borrower;
(xviii) The Mortgage Rate (exclusive of any default interest late
charges, or prepayment premium) 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 applicable to such Mortgage Loan
have been complied with as of the date of origination of such
Mortgage Loan;
(xix) No fraudulent acts were committed by the Seller during the
origination process of any such Mortgage Loan;
(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, are being appealed, 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;
(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) Except as disclosed in the Prospectus Supplement dated December
10, 1996 relating to the Certificates (the "Prospectus
Supplement"), each related Mortgaged Property is insured by a
fire and extended perils insurance policy, issued by an insurer,
or reinsured by a reinsurer, meeting the requirements of the
related Loan Documents, 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 for a minimum of twelve months
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) that, 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 one month delinquent
since origination and as of the Cut-off Date was not one month or
more delinquent;
(xxvi) Each related Mortgage contains customary and enforceable
provisions subject to matters described in clause (iv) above 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 related Borrower which would interfere
with such right to foreclose;
(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 any and all 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, subject to certain exceptions with respect to the
culpability of the indemnified parties; a Phase I environmental
report was conducted by a reputable environmental consultant in
connection with such Mortgage Loan, which report, except as
disclosed in the Prospectus Supplement, 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 the Prospectus
Supplement, is in material compliance with all applicable
federal, state and local laws pertaining to environmental
hazards, and to the best of Seller's knowledge, except as
disclosed in the Prospectus Supplement, 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 or obtaining the prior written
consent of the Mortgagee, the related Mortgaged Property, or any
interest therein, is directly or indirectly transferred or sold,
or encumbered in connection with subordinate financing;
(xxix) To Seller's knowledge, and in reliance upon an opinion of counsel
to the extent received, (A) when the related UCC financing
statements are filed and indexed in the appropriate state and
local offices for such filing and indexing, such filings shall be
sufficient to perfect a lien on the Mortgaged Property described
therein to the extent a security interest can be perfected under
the UCC and (B) no re-filing of such financing statements will be
necessary for the perfection of the lien intended to be created
or the enforcement of such Mortgage Loan against the related
Borrower, other than filing UCC continuation statements with the
appropriate state and local offices as required under the law of
the applicable state to continue the perfection of the liens
perfected by UCC financing statements;
(xxx) (A) the Mortgage Loan is directly secured by one or more
Mortgages on commercial property, and (B) 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
(1) 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 (2) at the Closing Date;
provided that the fair market value of the real property interest
must first be reduced by (x) 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 clauses (1) and (2) shall be made on an
aggregated basis) and (y) 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
clauses (1) and (2) shall be made on an aggregate basis);
(xxxi) With respect to each Mortgaged Property where the estate of the
related Borrower therein is a leasehold estate;
(A) the related lease or a memorandum thereof has been or will
be duly recorded; such lease or an estoppel letter or lender
protective agreement between the Seller and the lessor under
such lease permits the interest of the lessee thereunder to
be encumbered by the related Mortgage; and, to the best of
Seller's knowledge, there has been no material amendment or
modification of such lease since its recordation, with the
exception of written amendments or modifications which are
part of the related Mortgage File;
(B) except as may be indicated in the related title insurance
policy, to the best of Seller's knowledge, the lessee's
interest in the related lease and the leasehold estate
created thereby is not subject to any liens or encumbrances
superior to, or of equal priority with, the related
Mortgage;
(C) the Seller and, subsequent to any assignment of the related
Mortgage, the Seller's successors and assigns, have the
right to succeed to the Borrower's interest in the related
lease upon notice to, but without the consent of, the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date), provided, in the event
that Seller, or its successors and assigns, shall have
succeeded to the interest of the Borrower, as lessee under
the lease, by foreclosure of the related Mortgage or
acceptance of an assignment in lieu thereof or other
remedies available to the mortgagee, the consent of such
lessor may be required for any subsequent assignment;
(D) as of the date the related Mortgage Loan was made, the
related lease was in full force and effect and, to such
lessor's knowledge, no default had occurred under such
lease, nor, to such lessor's knowledge, was there any then
existing condition which, but for the passage of time or the
giving of notice, would have resulted in a default under the
terms of such lease, and as of the date hereof, Seller has
received no written notice of a default or event of default
on the part of a Borrower from the lessor of such Borrower's
lease;
(E) the related lease or an estoppel letter or lender protective
agreement requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee, provided that
the mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such lease,
estoppel letter or lender protective agreement; the
mortgagee has provided the lessor with such notice;
(F) the related lease, estoppel letter or lender protective
agreement provides a mortgagee with a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such lease)
to cure any default under such lease, which is curable after
the receipt of notice of any such default before the lessor
thereunder may terminate such lease;
(G) (1) the related lease has a term (including renewals, if
exercised) which extends not less than ten years beyond the
maturity date of the related Mortgage Note and (2) to the
extent that the representation under the foregoing clause
(1) is based on the existence of renewal options, the terms
on which the related borrower has the right to enter into
such renewals, and any conditions to the related borrower's
right to enter into such renewals, are commercially
reasonable;
(H) under the terms of the related lease, estoppel letter,
lender protection agreement and the related Mortgage, taken
together, any insurance proceeds other than in respect of a
total or substantially total loss or taking, will be applied
either (1) to the repair or restoration of all or part of
the related Mortgaged Property, with the lessor, mortgagee
or a depository appointed pursuant to the terms of such
lease having the right to hold and disburse such proceeds as
the repair or restoration progresses, or (2) to the payment
of the outstanding principal balance of the applicable
Mortgage Loan together with any accrued interest thereon;
(I) the related lease does not impose restrictions on subletting
of all or portions of the Mortgaged Property by lessee which
would be viewed, as of the date of origination of such
Mortgage Loan, as commercially unreasonable by the Seller;
and
(J) the related lease or an estoppel letter provides that in the
event that a lessee in bankruptcy rejects any or all of its
leases; the leasehold mortgagee will have the right to
succeed to the ground lessee's position under the lease,
provided that written notice has been sent to the lessor and
all defaults with respect to the lease are cured.
(xxxii) The Mortgage Loan Schedule is complete and accurate in all
respects;
(xxxiii) No advance of funds has been made, directly or indirectly, by the
Seller to any borrower and no funds have been received from any
person other than the borrower for or on account of payments due
on a Note or Mortgage;
(xxxiv) No Mortgage Loan is secured by collateral that is not included in
the Trust Fund;
(xxxv) Each Mortgage Loan that is cross-collateralized is
cross-collateralized only with Notes included in the Trust Fund;
and
(xxxvi) Each Mortgaged Property that is located in a federally designated
flood hazard area is covered by an insurance policy covering
flood losses.
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 (i) 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), (xxii), (xxiv), (xxix) or (xxx) and (ii) any breach of any
representation or warranty contained in Section 2(b), (x), (xiii), (xiv), (xxi),
(xxiii), (xxv), (xxvi), (xxvii), (xxviii), (xxxi), (xxxii), (xxxiii), (xxxiv),
(xxxv) and (xxxvi) 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), discovery) of a
breach provided for in clause (a), the Seller shall either (i) repurchase the
related Mortgage Loan 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)) 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 and the Securities 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 Mortgage Loan to which such
breach related. Upon any such repurchase of a Mortgage Loan by the Seller, the
Company shall execute and deliver such instruments of transfer or assignment
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (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 pursuant to this Section. The Trustee or its designee may enforce such
obligation as provided in Section 9 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, 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. Successor Borrowers. The Company hereby agrees that in the event that
the Seller is obligated to establish an entity to succeed to the obligations of
a Borrower upon the defeasance with respect to the related Mortgage Loan, the
Company shall, or shall cause the Servicer under the Pooling and Servicing
Agreement to, establish such a successor entity, in each case in accordance with
the provisions of the related Loan Documents.
7. 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 (a) any recording fees or fees for title policy
endorsements and continuations, (b) the expenses of preparing, printing and
reproducing the Prospectus Supplement, the Private Placement Memorandum, the
Underwriting Agreement, the Placement Agreement, the Pooling and Servicing
Agreement and the Certificates and (c) 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.
8. 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.
9. 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.
10. 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 the 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 9 hereof.
11. Third Party Beneficiary. Nomura Securities International, Inc. is an
intended third party beneficiary of the representations and warranties of the
Seller set forth in Section 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 Representations and Warranties
Clause of
Section 2(b): Exception:
- -------------- -----------------------------------------------------------------
(xxxi)(C) The lease for the Prime Retail II Pool Property known as Magnolia
Bluff Factory Shops provides that the Seller's successors and
assigns have the right to foreclose on the fee interest of the
lessor upon the occurrence of an event of default under the Prime
Retail II Pool Loan.
(xxxi)(C) The lease for a portion of the Palmer Square PS Property provides
that a purchaser at any execution sale of the lease and the
leasehold estate thereby created in connection with any
proceedings for the foreclosure of the related Mortgage shall
with the consent of the lessor (to the extent required under the
lease) be deemed to be a permitted assignee or transferee under
the lease and that such party shall be deemed to have agreed to
perform all of the terms, covenants and conditions on the part of
the related Palmer Square Borrower to be performed under the
lease from and after the date of such purchase, assignment or
transfer (but not for any obligations or liabilities accruing
prior to such date), but only for so long as such purchaser,
assignee or transferee is the owner of the lease and the
leasehold estate thereby created.
(xxxi)(D) The lessor under the lease for a portion of the Palmer Square PS
Property has notified the related Palmer Square Borrower of a
dispute with respect to the amount of rent payable for the period
from April 1, 1994 through March 31, 1997. The lessor has not
delivered notice of a default with respect to such payments. In
the related ground lessor estoppel certificate, the lessor has
represented and warranted to the lender under the related
Mortgage Loan that the related Palmer Square Borrower is not in
default under the lease. The disputed amount of $72,072 is
required to be reserved as disclosed in the Prospectus
Supplement.
(xxxi)(G) Except for the lease with respect to the Prime Retail II Pool
Property known as Magnolia Bluff Factory Shops, in which case the
lessor has subjected its fee interest to the related Mortgage.
(xxxi)(H) Except, in the case of the ground lease on the Cincinnati Airport
Radisson, with respect to a loss not susceptible to repair in 90
days where the Columbia Sussex II Pool Borrower has, with the
consent of the lender, terminated the ground lease (and depending
on how much time remains in the lease term) the ground lessor may
be entitled to unspecified portions of the proceeds.
(xxxi)(J) Except for the lease with respect to the Prime Retail II Pool
Property known as Magnolia Bluff Factory Shops.
(xxxiii) With respect to the Prime Retail II Pool Loan, the Seller has
agreed, under certain circumstances, to pay a portion of the
Defeasance Deposit that may be required in November 2000 in order
to liquidate the Expansion Account (as defined in the related
Mortgages).
