SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: March 30, 1998
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(Date of earliest event reported)
Nomura Asset Securities Corporation
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(Exact name of registrant as specified in its charter)
Delaware 33-48481-06 13-3672336
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number Identification No.)
Incorporation
Two World Financial Center, Building B, New York, New York 10281
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Address of Principal Executive Office
Registrant's telephone number, including area code: (212) 667-9300
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Item 5. Other Events.
Attached as Exhibit 4 is the Pooling and Servicing Agreement (as defined
below) for the Nomura Asset Securities Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D6 (the "Certificates"). On March 30,
1998, the Nomura Asset Securities Corporation (the "Company") caused the
issuance, pursuant to a Pooling and Servicing Agreement dated as of March 30,
1998 (the "Pooling and Servicing Agreement") by and among the Company, AMRESCO
Services, L.P., as servicer, CRIIMI MAE Services Limited Partnership., as
special servicer, LaSalle National Bank, as trustee and ABN AMRO Bank N.V., as
fiscal agent of the Certificates, issued in twenty-one classes: the Class A-1A,
Class A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and Class LR
Certificates.
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 Pooling and Servicing Agreement dated
as of March 30, 1998.
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0234233.01
Pursuant to the requirements of the Securities 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
Managing Director
Date: April 15, 1998
NOMURA ASSET SECURITIES CORPORATION,
DEPOSITOR
AMRESCO SERVICES, L.P.,
SERVICER
CRIIMI MAE SERVICES LIMITED PARTNERSHIP,
INITIAL SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
POOLING AND SERVICING AGREEMENT
Dated as of March 30, 1998
Commercial Mortgage Pass-Through Certificates
Series 1998-D6
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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, Warranties and Covenants of the Depositor
SECTION 2.04. Representations, Warranties and Covenants of the Servicer,
Special Servicer and Trustee
SECTION 2.05. Execution and Delivery of Certificates; Issuance of Lower-Tier
Regular Interests
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the Mortgage
Loans
SECTION 3.02. Liability of the Servicer
SECTION 3.03. Collection of Certain Mortgage Loan Payments
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts
SECTION 3.05. Collection Account; Distribution Account; Upper-Tier
Distribution Account;
Default Interest Distribution Account; and Excess Interest
Distribution Account
SECTION 3.06. Permitted Withdrawals from the Collection Account
SECTION 3.07. Investment of Funds in the Collection Account, the REO Account,
the Lock-Box Accounts, the Cash Collateral Accounts, the
Interest Reserve
Account and the Reserve Accounts
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions and
Fidelity Coverage
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing Compensation
SECTION 3.13. Reports to the Trustee; Collection Account Statements
SECTION 3.14. Annual Statement as to Compliance
SECTION 3.15. Annual Independent Public Accountants' Servicing Report
SECTION 3.16. Access to Certain Documentation
SECTION 3.17. Title and Management of REO Properties and REO Account
Properties
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties
SECTION 3.19. Additional Obligations of the Servicer and the Special
Servicer; Inspections
SECTION 3.20. Authenticating Agent
SECTION 3.21. Appointment of Custodians
SECTION 3.22. Reports to the Securities and Exchange Commission; Available
Information
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts
and Reserve Accounts
SECTION 3.24. Property Advances
SECTION 3.25. Appointment of Special Servicer
SECTION 3.26. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping
SECTION 3.27. Interest Reserve Account
SECTION 3.28. Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Mortgage Loans
SECTION 3.29. Intentionally left Blank
SECTION 3.30. Modification, Waiver, Amendment and Consents
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders; Reports by Trustee; Other
Information Available to the Holders and Others
SECTION 4.03. Compliance with Withholding Requirements
SECTION 4.04. REMIC Compliance
SECTION 4.05. Imposition of Tax on the Trust Fund
SECTION 4.06. Remittances; P&I Advances
SECTION 4.07. Grantor Trust Reporting
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration, Transfer and Exchange of Certificates
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.04. Appointment of Paying Agent
SECTION 5.05. Access to Certificateholders' Names and Addresses
SECTION 5.06. Actions of Certificateholders
ARTICLE VI
THE DEPOSITOR, THE SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
Servicer
SECTION 6.02. Merger or Consolidation of the Servicer
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and
Others
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer;
Termination of the Servicer and the Special Servicer
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Other Remedies of Trustee
SECTION 7.05. Waiver of Past Events of Default; Termination
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or
Mortgage Loans
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee and Fiscal Agent
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent
ARTICLE IX
TERMINATION
SECTION 9.01. Termination
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts
SECTION 10.02. Limitation on Rights of Certificateholders
SECTION 10.03. Governing Law
SECTION 10.04. Notices
SECTION 10.05. Severability of Provisions
SECTION 10.06. Notice to the Depositor and Each Rating Agency
SECTION 10.07. Amendment
SECTION 10.08. Confirmation of Intent
SECTION 10.09. Streit Act
SECTION 10.10. No Intended Third-Party Beneficiaries
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 Reserved
Exhibit A-5 Form of Class A-2 Certificate
Exhibit A-6 Form of Class A-3 Certificate
Exhibit A-7 Form of Class A-4 Certificate
Exhibit A-8 Form of Class A-5 Certificate
Exhibit A-9 Reserved
Exhibit A-10 Reserved
Exhibit A-11 Form of Class A-CS1 Certificate
Exhibit A-12 Form of Class PS-1 Certificate
Exhibit A-13 Form of Class B-1 Certificate
Exhibit A-14 Form of Class B-2 Certificate
Exhibit A-15 Form of Class B-3 Certificate
Exhibit A-16 Form of Class B-4 Certificate
Exhibit A-17 Form of Class B-5 Certificate
Exhibit A-18 Form of Class B-6 Certificate
Exhibit A-19 Form of Class B-7 Certificate
Exhibit A-20 Form of Class B-7H Certificate
Exhibit A-21 Form of Class V-1 Certificate
Exhibit A-22 Form of Class V-2 Certificate
Exhibit A-23 Form of Class R Certificate
Exhibit A-24 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 Securities Legend
Exhibit H-1 NACC Mortgage Loan Purchase and Sale Agreement
Exhibit H-2 Financing Trust Mortgage Loan Purchase and Sale Agreement
Exhibit I Form of Regulation S Transfer Certificate
Exhibit J Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate during the Restricted Period
Exhibit K Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit L Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global
Certificate
Exhibit M-1 Form of Comparative Financial Status Report
Exhibit M-2 Form of Delinquent Loan Status Report
Exhibit M-3 Form of Historical Loan Modification Report
Exhibit M-4 Form of Historical Loss Estimate Report
Exhibit M-5 Form of REO Status Report
Exhibit M-6 Form of Watch List
Exhibit M-7 Form of Operating Statement Analysis Report
Exhibit M-8 Form of NOI Adjustment Worksheet
Exhibit M-9 CSSA 100.1 Set-Up Data Record Layout
Exhibit M-10 CSSA 100.1 Periodic Data Record Layout
Exhibit M-11 CSSA 100.1 Property Data File
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Pooling and Servicing Agreement, dated as of March 30, 1998, among Nomura
Asset Securities Corporation, as Depositor, AMRESCO Services, L.P., as Servicer,
CRIIMI MAE Services Limited Partnership, as initial Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have the
meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Lock-Box Accounts, Cash Collateral Accounts, Reserve Accounts,
the Default Interest, the Default Interest Distribution Account, the Excess
Interest and the Excess Interest Distribution Account (such portion of the Trust
Fund, the "Trust REMICs"), be treated for federal income tax purposes as two
separate real estate mortgage investment conduits (each, a "REMIC" or, in the
alternative, the "Lower-Tier REMIC" and the "Upper-Tier REMIC," respectively).
The Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7 and Class B-7H Certificates constitute "regular
interests" in the Upper-Tier REMIC and the Class R Certificates constitute the
sole Class of "residual interests" in the Upper-Tier REMIC for purposes of the
REMIC Provisions. The Class LR Certificates constitute the sole Class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions. There are also 16 Classes of uncertificated Lower-Tier Regular
Interests issued under this Agreement (the Class A-1A1-L, Class A-1A2-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
B-1-L, Class B-2-L, Class B-3-L, Class B-4-L, Class B-5-L, Class B-6-L, Class
B-7-L and Class B-7H-L Interests), each of which will constitute a regular
interest in the Lower-Tier REMIC. All such Lower-Tier Regular Interests will be
held by the Trustee as assets of the Upper-Tier REMIC. The parties intend that
the portions of the Trust Fund representing the Default Interest, the Default
Interest Distribution Account, the Excess Interest and the Excess Interest
Distribution Account will be treated as a grantor trust under Subpart E of Part
1 of Subchapter J of the Code, that the Class V-1 Certificates represent pro
rata undivided beneficial interests in the portion of the Trust Fund consisting
of the Default Interest, subject to the obligations to pay the Advance Interest
Amount, and the Default Interest Distribution Account and that the Class V-2
Certificates represent pro rata undivided beneficial interests in the portion of
the Trust Fund consisting of the Excess Interest and the Excess Interest
Distribution Account.
The following table sets forth the designation and aggregate initial
Certificate Balance (or, with respect to the Class A-CS1 and Class PS-1
Certificates, Notional Balance) for each Class of Certificates comprising
interests in the Upper-Tier REMIC.
Certificate Balance
Class or Notional Balance Initial Rating (3)
Class A-1A $511,492,100 (AAA/AAA/AAA/Aaa)
Class A-1B $1,786,155,716 (AAA/AAA/AAA/Aaa)
Class A-1C $382,686,304 (AAA/AAA/AAA/Aaa)
Class A-CS1(1) $200,000,000 (nr/AAA/AAA/Aaa)
Class PS-1(2) $3,722,686,278 (nr/AAA/AAA/Aaa)
Class A-2 $223,361,177 (nr/AA/nr/Aa2)
Class A-3 $204,747,745 (nr/A/nr/A2)
Class A-4 $167,520,883 (nr/BBB/nr/Baa2)
Class A-5 $55,840,294 (nr/BBB-/nr/Baa3)
Class B-1 $158,214,167 (BB+/nr/nr/nr)
Class B-2 $37,226,863 (BB/BB/nr/nr)
Class B-3 $37,226,863 (nr/BB-/nr/nr)
Class B-4 $65,147,010 (B+/nr/nr/nr)
Class B-5 $18,613,431 (nr/B/nr/nr)
Class B-6 $27,920,147 (nr/B-/nr/nr)
Class B-7 $46,532,578 (unrated)
Class B-7H $1,000 (unrated)
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(1) The initial Notional Balance of the Class A-CS1 Certificates is equal to
$200,000,000 (the initial Certificate Balance of the Class A-1A Certificates
minus $311,492,100).
(2) The initial Notional Balance of Class PS-1 Certificates is equal to the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
(3) Rating Agencies (S&P, Fitch, DCR, Moody's)
The initial Certificate Balance of each of the Class V-1, Class V-2, Class
R and Class LR Certificates is zero. Additionally, the Class V-1, Class V-2,
Class R and Class LR Certificates do not have a Notional Balance. The
Certificate Balance of any Class of Certificates outstanding at any time
represents the maximum amount which holders thereof are entitled to receive as
distributions allocable to principal from the cash flow on the Mortgage Loans
and the other assets in the Trust Fund; provided, however, that in the event
that amounts previously allocated as Realized Losses to a Class of Certificates
in reduction of the Certificate Balance thereof are subsequently recovered
(including without limitation after 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 $3,722,686,278.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer, the initial Special Servicer, the Trustee and the Fiscal Agent
agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"Additional Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Additional Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan as of the Due Date (after giving effect
to all payments of principal on such Mortgage Loan on such Due Date) in the
month preceding the month in which such Distribution Date occurs.
"Additional Servicing Fee Rate": A rate equal to 0.01% per annum.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, have not been
reimbursed and Servicing Fees, Trustee Fees or Special Servicing Compensation
for which the Servicer, the Trustee or the Special Servicer, as applicable, has
not been timely paid or reimbursed for the number of days from (and including)
the date on which such Advance was made or such Servicing Fees, Trustee Fees or
Special Servicing Compensation were due to (but excluding) the date of payment
or reimbursement of the related Advance or other such amount, less any amount of
interest previously paid on such Advance or Servicing Fees, Trustee Fees or
Special Servicing Compensation; provided, that, with respect to a P&I Advance,
in the event that the related Borrower makes payment of the amount in respect of
which such P&I Advance was made with interest at the Default Rate, the Advance
Interest Amount payable to the Servicer, the Trustee or the Fiscal Agent shall
be paid (i) first from the amount of Default Interest paid by the Borrower and
(ii) to the extent such amounts are insufficient therefor, from amounts on
deposit in the Collection Account.
"Advance Rate": A per annum rate equal to the sum of (i) the Prime Rate (as
most recently published in the "Money Rates" section of The Wall Street Journal,
New York edition, on or before the related Record Date) plus (ii) 1%, compounded
monthly as of each Servicer Remittance Date.
"Adverse Resolution": As defined in Section 3.28(r).
"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 Depository 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, Loan Agreement or the Mortgage
Loan Schedule.
"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 any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate, the
date upon which such Mortgage Loan commences accruing interest at such Revised
Mortgage Rate.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
"Applicant": As defined in Section 5.05(a).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the sum of the appraised values
of the related Mortgaged Properties as determined by Updated Appraisals obtained
by the Servicer of the Mortgaged Properties securing such Mortgage Loan over
(ii) the sum of (A) to the extent not previously advanced by the Servicer, the
Trustee or the Fiscal Agent, all unpaid interest on such Mortgage Loan at a per
annum rate equal to its Mortgage Rate, (B) all unreimbursed Property Advances
and all unreimbursed P&I Advances (in each case, without duplication of any
amounts in clause (A)), and all unpaid interest on Advances at the Advance Rate,
in respect of such Mortgage Loan and (C) all due and unpaid real estate taxes,
ground rents and assessments and insurance premiums and all other amounts due
and unpaid with respect to such Mortgage Loan (which taxes, premiums and other
amounts have not been the subject of an Advance by the Servicer, the Trustee or
the Fiscal Agent, as applicable). If no Updated Appraisal has been obtained
within the last 12 months prior to the first Distribution Date on or after an
Appraisal Reduction Event has occurred, the Servicer shall estimate the value of
the related Mortgaged Properties (the "Servicer's Appraisal Estimate") and such
estimate shall be used for purposes of determining the Appraisal Reduction
Amount for such Distribution Date. Within 60 days (or such shorter period as
practical) after the Servicer receives notice or is otherwise aware of the
Appraisal Reduction Event, the Servicer shall obtain an Updated Appraisal. On
the first Distribution Date occurring on or after the delivery of such
appraisal, the Servicer shall adjust the Appraisal Reduction Amount to take into
account such appraisal (regardless of whether the Updated Appraisal is higher or
lower than the Servicer's Appraisal Estimate). Each Appraisal Reduction Amount
shall also be adjusted to take into account any subsequent Updated Appraisal and
annual letter updates, as of the date of each such subsequent Updated Appraisal
or letter update.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the first
Distribution Date following 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 (unless during such extension
period the borrower has been delinquent for 60 days or more, in which case, the
first Distribution Date following such 60 day delinquency), (ii) 60 days after
an uncured Delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan, (iii) the date on which a reduction in
the amount of Monthly Payments on such Mortgage Loan, or a change in any other
material economic term of such Mortgage Loan (other than an extension of the
Maturity Date), becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) the date a receiver has been appointed, (v)
the date a borrower declares bankruptcy, (vi) the date a Mortgage Loan becomes
an REO Mortgage Loan, (vii) upon a default in the payment of a Balloon Payment,
or (viii) any other event which, in the discretion of the Servicer and of which
the Servicer becomes aware in performing its obligations hereunder, in
accordance with the Servicing Standard, would materially and adversely impair
the value of a Mortgaged Property and security for the related Mortgage Loan.
The Special Servicer shall notify the Servicer within five (5) days of its
becoming aware of the occurrence of any of the foregoing events.
"ARD Loan": A Mortgage Loan that substantially fully amortizes by its
maturity date but provides for a date on which a substantial amount of principal
will be due if the Borrower elects to prepay the Mortgage Loan in full on such
date (such date, the "Anticipated Repayment Date"). An ARD Loan provides for the
establishment of a lock box (generally three months to one year prior to the
Anticipated Repayment Date) if one is not already in place, and after the
Anticipated Repayment Date, for the application of all cash flow not used to pay
scheduled amounts due on the Mortgage Loan and operating expenses to reduce the
principal balance of the Mortgage Loan and an increased interest rate.
"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, the
Special Servicer and the Servicer shall be responsible for determining whether
any assignment is legally sufficient or in recordable form.
"Assumed Maturity Date": With respect to any Mortgage Loan that is not a
Balloon Loan, the maturity date of such Mortgage Loan. With respect to any
Balloon Loan, the date on which such Mortgage Loan would be deemed to mature in
accordance with its original amortization schedule absent its Balloon Payment.
"Assumed Scheduled Payment": With respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment (including any REO Mortgage Loan as
to which the Balloon Payment would have been past due), an amount equal to the
sum of (a) the principal portion of the Monthly Payment that would have been due
on such Mortgage Loan on the related Due Date (or portion thereof not received),
based on the constant Monthly Payment that would have been due on such Mortgage
Loan on the related Due Date based on the constant payment required by the
related Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Servicer or Special Servicer
in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Atlanta Marriott Marquis Loan": The Mortgage Loan secured by a mortgage on
the Mortgaged Property known as the Atlanta Marriott Marquis and identified as
Loan Number 8 on the Mortgage Loan Schedule.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all previously
undistributed Monthly Payments, Minimum Defaulted Monthly Payments or other
receipts on account of principal and interest (including Unscheduled Payments
and any 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 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, (iii) for the Distribution Date occurring in
each March, the Withheld Amounts remitted to the Distribution Account pursuant
to Section 3.27(b), (iv) any late payments of Monthly Payments received after
the end of the Collection Period relating to such Distribution Date but prior to
the related Servicer Remittance Date and (v) any Servicer Prepayment Interest
Shortfalls 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 Trustee Fee and an amount
representing any applicable Special Servicing Compensation, each
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 Servicing Compensation
or Special Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance
Proceeds with respect to a Mortgage Loan which represents any
unpaid Servicing Fee, Trustee Fee and Special Servicing
Compensation, including interest thereon at the Advance Rate as
provided in this Agreement, to which the Servicer, Trustee and
the Special Servicer, respectively, are entitled;
(f) all amounts representing certain expenses reimbursable 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 Upper-Tier Distribution Account, the
Distribution Account, the Default Interest Distribution Account,
the Excess Interest Distribution Account, the Interest Reserve
Account, or any REO Account or, to the extent payable to the
Trustee or the Servicer under the terms of the related Mortgage
Loan, any Cash Collateral Account, any Lock-Box Account or any
Reserve Account or, in each case, in Permitted Investments in
which such funds may be invested;
(h) with respect to the Interest Reserve Loans 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 Interest Reserve Account and held for future
distribution pursuant to Section 3.27;
(i) all amounts received with respect to each Mortgage Loan
previously purchased or repurchased pursuant to Sections 2.03(d),
2.03(e), 3.18 or 9.01 during the related Collection Period and
subsequent to the date as of which the amount required to effect
such purchase or repurchase was determined;
(j) the amount reasonably determined by the Trustee to be necessary
to pay any applicable federal, state or local taxes imposed on
the Upper-Tier REMIC or the Lower-Tier REMIC under the
circumstances and to the extent described in Section 4.05;
(k) Prepayment Premiums and Post-lock out Return of Fee Amounts;
(l) Default Interest; and
(m) Excess Interest.
"Balloon Loan": Any Mortgage Loan that requires a payment of principal on
the maturity date in excess of its constant Monthly Payment.
"Balloon Payment": With respect to each Mortgage Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Beneficial Owner": With respect to a Global Certificate, the Person who is
the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. 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.
"Bloomfield Purchase Agreement": With respect to certain Mortgage Loans not
originated by NACC, the agreement between NACC and Bloomfield Acceptance
Company, LLC pursuant to which NACC acquired such Mortgage Loans.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors on
any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day on which
banking institutions in the City of New York, New York, the City of Chicago,
Illinois, the State of Georgia, the State of Texas or the State of Maryland are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Carmax Credit Lease Loans": The Mortgage Loans secured, among other
things, by credit leases having Circuit City Stores, Inc. as the tenant or
guarantor, which Mortgage Loans are identified as Loan Numbers 41, 63, 64 and 67
on the Mortgage Loan Schedule.
"Cash Collateral Account": With respect to any Mortgage Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document into which the Lock-Box Account monies are swept on a regular basis for
the benefit of the Trustee as successor to the Mortgage Loan Seller. Any Cash
Collateral Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive all reinvestment income or gain thereon
in accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon in accordance with the terms of the related Mortgage Loan. The Servicer
shall be permitted to make withdrawals therefrom for deposit into the Collection
Account. To the extent not inconsistent with the terms of the related Mortgage
Loan, each such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan, the
cash collateral account agreement, if any, between the Originator and the
related Borrower, pursuant to which the related Cash Collateral Account, if any,
may have been established.
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the Mortgage Loan Seller in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-off Date, to the
extent transferred to the Trust Fund pursuant to Section 2.01.
"Cedel": Citibank, N.A., as depositary for Cedel Bank, societe anonyme, or
its successor in such capacity.
"Certificate": Any Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class
PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-7H, 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 A-CS1, Class PS-1, Class V-1, Class V-2, Class R and Class LR
Certificates) or Lower-Tier Regular Interests (a) on or prior to the first
Distribution Date, an amount equal to the aggregate initial Certificate Balance
of such Class, as specified in the Preliminary Statement hereto, (b) as of any
date of determination after the first Distribution Date, the Certificate Balance
of such Class of Certificates or Lower-Tier Regular Interests on the
Distribution Date immediately prior to such date of determination after
distributions allocable to principal have been made thereon and Realized Losses
allocated thereto 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 an amount equal to the amount of Appraisal Reductions allocated for
purposes of Section 4.06; provided further that no such reduction shall apply to
the Voting Rights of the Class PS-1 and Class A-CS1 Certificates. With respect
to any Class of Lower-Tier Regular Interests, the Certificate Balance thereof
shall, in any event, be equal to the Certificate Balance of the Related
Certificates; provided, that the Certificate Balance of the Class A-1A1-L
Interest shall be equal to the Class A-1A Component 1 Balance and the
Certificate Balance of the Class A-1A2-L Interest shall be equal to the Class
A-1A Component 2 Balance.
"Certificate Custodian": Initially, LaSalle National Bank; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the Certificate
Register subject to the following:
(i) except as provided in clause (ii), for the purpose of giving any
consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Servicer,
the Special Servicer, the Trustee, a Manager or a Borrower or any
Person known to a Responsible Officer of the Certificate
Registrar to be an Affiliate of any thereof shall be deemed not
to be outstanding and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the
requisite percentage of Voting Rights necessary to effect any
such consent or take any such action has been obtained;
(ii) for purposes of obtaining the consent of Certificateholders to an
amendment of the Pooling and Servicing Agreement, any
Certificates beneficially owned by the Servicer, Sub-Servicer or
the Special Servicer or an Affiliate thereof shall be deemed to
be outstanding, unless such amendment relates to compensation of
the Servicer or the Special Servicer or benefits the Servicer or
the Special Servicer (in its capacity as such) or any Affiliate
thereof (other than solely in its capacity as Certificateholder)
in any material respect, in which case such Certificates shall be
deemed not to be outstanding;
(iii)except as provided in clause (iv) below, for purposes of
obtaining the consent of Certificateholders to any action
proposed to be taken by the Special Servicer with respect to a
Specially Serviced Mortgage Loan, any Certificates beneficially
owned by the Special Servicer or an Affiliate thereof shall be
deemed not to be outstanding;
(iv) for purposes of Section 3.30 (for purposes of determining who the
Directing Holders are), Certificates owned by the Special
Servicer or an Affiliate shall be deemed to be outstanding; and
(v) for purposes of providing or distributing any reports, statements
or other information required or permitted to be provided to a
Certificateholder hereunder, a Certificateholder shall include
any Beneficial Owner, or any Person identified by a Beneficial
Owner as a prospective transferee of a Certificate beneficially
owned by such Beneficial Owner, but only if the Trustee or
another party hereto furnishing such report, statement or
information has been provided with the name of the Beneficial
Owner of the related Certificate or the Person identified as a
prospective transferee thereof. For purposes of the foregoing,
the Depositor, the Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Fiscal Agent or other such Person may rely,
without limitation, on a Depository Participant listing from the
Depository or statements furnished by a Person that on their face
appear to be statements from a Depository Participant to such
Person indicating that such Person beneficially owns
Certificates.
"Circuit City Credit Lease Loans": The Mortgage Loans secured, among other
things, by credit leases having Circuit City Stores, Inc. as the tenant or
guarantor, which Mortgage Loans are identified as Loan Numbers 85, 135, 140,
156, 162, 170 and 202 on the Mortgage Loan Schedule.
"Class": With respect to the Certificates or Lower-Tier Regular Interests,
all of the Certificates or Lower-Tier Regular Interests bearing the same
alphabetical and numerical Class designation.
"Class A-1A Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1A Component 1 Balance": (a) On or prior to the first Distribution
Date, an amount equal to $200,000,000, and (b) as of any date of determination
after the first Distribution Date, the balance thereof on the Distribution Date
immediately prior to such date of determination minus (i) all distributions
allocable to principal made on the Class A-1A Certificates on such prior
Distribution Date if such prior Distribution Date occurred prior to the
Cross-over Date and a pro rata portion of all distributions allocable to
principal made on the Class A-1A Certificates on such prior Distribution Date if
such prior Distribution Date occurred on or after the Cross-over Date and (ii) a
pro rata portion of any Realized Losses allocated to the Class A-1A Certificates
on such prior Distribution Date (in the case of both clauses (i) and (ii), such
pro rata portion to be determined in accordance with the Class A-1A Component 1
Balance and the Class A-1A Component 2 Balance, in each case, prior to
distributions on such prior Distribution Date).
"Class A-1A Component 2 Balance": (a) On or prior to the first Distribution
Date, an amount equal to $311,492,100, and (b) as of any date of determination
after the first Distribution Date and (i) prior to the reduction of the Class
A-1A Component 1 Balance to zero, the balance thereof on the Distribution Date
immediately prior to such date of determination minus the sum of (x) a pro rata
portion of all distributions allocable to principal made on the Class A-1A
Certificates on such prior Distribution Date if such prior Distribution Date
occurred on or after the Cross-over Date and (y) a pro rata portion of any
Realized Losses allocated to the Class A-1A Certificates on such prior
Distribution Date (in the case of both clauses (x) and (y), such pro rata
portion to be determined in accordance with the Class A-1A Component 1 Balance
and the Class A-1A Component 2 Balance, in each case, prior to distributions on
such prior Distribution Date) and (ii) after the reduction of the Class A-1A
Component 1 Balance to zero, the Certificate Balance of the Class A-1A
Certificates.
"Class A-1A Pass-Through Rate": A per annum rate equal to 6.280%.
"Class A-1A1-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1A2-L Interest" A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-1B Pass-Through Rate": A per annum rate equal to 6.590%.
"Class A-1B-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-1C Pass-Through Rate": A per annum rate equal to 6.690%.
"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-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.
"Class A-2 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.16%.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.95%.
"Class A-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.58%.
"Class A-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class A-5 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus .45%.
"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-CS1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class A-CS1 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 6.280%.
"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-13 hereto.
"Class B-1 Pass-Through Rate": A per annum rate equal to 6.000%.
"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-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-14 hereto.
"Class B-2 Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class B-3 Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class B-4 Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-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-17 hereto.
"Class B-5 Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-5-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-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-18 hereto.
"Class B-6 Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-6-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-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-19 hereto.
"Class B-7 Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-7-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-7H 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-20 hereto.
"Class B-7H Pass-Through Rate": A per annum rate equal to 6.000%.
"Class B-7H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Distribution Amount": With respect to any Distribution Date
and the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-2, Class A-3,
Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class B-6, Class B-7 and Class B-7H Certificates, an amount equal to the
Interest Accrual Amount thereof for such Distribution Date; with respect to any
Distribution Date and the Class PS-1 Certificates, the Interest Accrual Amount
thereof for such Distribution Date minus the aggregate Reduction Interest
Distribution Amounts in respect of such Distribution Date.
"Class Interest Shortfall": On any Distribution Date for any Class of
Certificates, the amount of interest (other than Net Default Interest, Excess
Interest, Reduction Interest Distribution Amounts or Reduction Interest
Shortfalls) required to be distributed to the Holders of such Class pursuant to
Section 4.01(b) on such Distribution Date minus the amount of interest (other
than Net Default Interest, Excess Interest, Reduction Interest Distribution
Amounts or Reduction Interest Shortfalls) actually distributed to such Holders
pursuant to such Section, if any.
"Class PS-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-12 hereto.
"Class PS-1 Pass Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus the Weighted Average Pass-Through
Rate.
"Class LR 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-24 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class R 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-23 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-21 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-22 hereto. The Class
V-2 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Closing Date": March 30, 1998.
"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.
"Co-Lender Agreements": The agreements dated as of the date hereof between
the Trustee and NACC, on the one hand, and LaSalle National Bank, as trustee, on
the other, regarding the administration of the Springfield Mall Loan, the Park
LaBrea Loan and the Atlanta Marriott Loan.
"Collateral Account": As defined in Section 3.30(e). The Collateral Account
shall be maintained as an Eligible Account.
"Collection Account": The trust account or accounts created and maintained
by the Servicer pursuant to Section 3.05(a), which shall be entitled "AMRESCO
Services, L.P., in trust for LaSalle National Bank, as Trustee, in trust for
Holders of Nomura Asset Securities Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-D6, 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 last day of the preceding
Collection Period (or, in the case of the Distribution Date occurring in April
1998, on the day after the Cut-off Date) and ending at the close of business on
the 11th day in the month in which such Distribution Date occurs (or, if such
day is not a Business Day, on the following Business Day).
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit M-1 attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income or net cash flow, as
applicable, and Debt Service Coverage Ratio for each Mortgage Loan as of the
date of the latest financial information available immediately preceding the
preparation of such report for each of the following periods (to the extent such
information is available): (i) the most current available year-to-date, (ii) the
most recent twelve months, (iii) the previous two full fiscal years, and (iv)
the "base year" (representing the original analysis of information used as of
the Cut-off Date); provided, however, that Debt Service Coverage Ratio shall not
be calculated for any Mortgaged Property for which twelve months of operating
information is not available (including for purposes of clause (i)). For the
purposes of the Servicer's production of any such report that is required to
state information for any period prior to the Cut-off Date, the Servicer may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Sellers.
"Corporate Trust Office": The principal office of the Trustee located at
135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674-4107, Attention:
Asset-Backed Securities Trust Services Group - Nomura 1998-D6 or the principal
trust office of any successor trustee qualified and appointed pursuant to
Section 8.08.
"Credit Lease Insurance Arbitration Account": As defined in Section
3.28(r).
"Credit Lease Loans": The Circuit City Credit Lease Loans, the Carmax
Credit Lease Loans, and the Mortgage Loans identified as Loan Numbers 48, 51,
58, 148, 149, 154, 156, 163, 216, 219 and 281 on the Mortgage Loan Schedule.
"Cross-Indemnified Party": As defined in Section 8.05(c).
"Cross-Indemnifying Party": As defined in Section 8.05(c).
"Cross-over Date": means the Distribution Date on which the Certificate
Balance of each Class of Certificates other than the Class A-1A, Class A-1B and
Class A-1C Certificates have been reduced to zero.
"CSSA Reports": Data files which contain the information substantially in
the forms of the CSSA standard reporting package attached as Exhibits M-9, M-10
and M-11, as the same may be modified from time to time.
"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": March 30, 1998.
"DCR": Duff & Phelps Credit Rating Co., or its successor in interest.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan as of any
date of determination and for any period, the ratio calculated by dividing the
net operating income or net cash flow, as applicable, of the related Mortgaged
Property or Mortgaged Properties, as the case may be, for the most recently
ended one-year period for which data is available from the related Borrower,
before payment of any scheduled payments of principal and interest on such
Mortgage Loan but after funding of required reserves and "normalized" by the
Servicer pursuant to Section 3.13, by the annual debt service required by such
Mortgage Loan. Annual debt service shall be calculated by multiplying the
Monthly Payment in effect on such date of determination for such Mortgage Loan
by 12. For purposes of calculating Debt Service Coverage Ratio for the Park
LaBrea Loan, the Springfield Mall Loan, the Atlanta Marriott Marquis Loan and
the Westin Casuarina Resort Loan, all pari passu notes secured by the related
Mortgaged Property are included (to the extent Servicer has received such
information).
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of (i) the related Default Rate over (ii) the
sum of the related Mortgage Rate and, if applicable, the related Excess Rate.
The Default Interest shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Default Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(d), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6, Default Interest
Distribution Account" and which must be an Eligible Account. The Default
Interest Distribution Account shall not be an asset of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment or a
Balloon Payment, as such rate is set forth on the Mortgage Loan Schedule.
"Delinquency": Any failure of a Borrower to make a scheduled payment on a
Due Date.
"Delinquency Reduction Amount": In connection with a Delinquency, an amount
equal to the scheduled payment (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.
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit M-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, were delinquent 1
Collection Period, delinquent 2 Collection Periods, delinquent 3 Collection
Periods or more, current but specially serviced, or were in foreclosure but were
not REO Property.
"Denomination": As defined in Section 5.01(a).
"Deposit": As defined in Section 3.30(e).
"Depositor": Nomura Asset Securities Corporation, a Delaware corporation,
and its successors and assigns.
"Depositor/NSI Transfer": As defined in Section 2.03(j)(xi).
"Depositor/Trustee Transfer": As defined in Section 2.03(j)(xi).
"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.
"Determination Date": The 11th day of each month or, if such day is not a
Business Day, the next succeeding Business Day.
"Directing Holders": As defined in Section 3.30(d).
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space for occupancy only within the
meaning of Treasury Regulations Section 1.512(b)-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 Treasury
Regulations Section 1.856-4(b)(5)(ii) of the regulations of the United States
Department of the Treasury.
"Discount Rate": With respect to any Class of Certificates, the rate
determined by the Trustee, in its good faith, to be the rate (interpolated and
rounded to the nearest one-thousandth of a percent, if necessary) in the
secondary market for United States Treasury securities with a maturity equal to
the then computed weighted average life (or in the case of the Class A-CS1 and
Class PS-1 Certificates, the weighted average life of the interest payments) of
such class (rounded to the nearest month), without taking into account the
related prepayment of principal.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Nomura Asset Securities Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D6, Distribution Account" and which must
be an Eligible Account.
"Distribution Date": The fourth Business Day following the 11th day of each
month; provided, that if the 11th day of any month is not a Business Day, the
Distribution Date will be the fifth Business Day following the 11th day of such
month. The first Distribution Date will be April 17, 1998.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to any Distribution Date and/or any Mortgage Loan,
as the case may be, the 11th day of the month in which such Distribution Date
occurs (or in the case of certain of the Mortgage Loans, if the 11th day is not
a business day, as defined in the related Loan Documents, either the next
business day or the first preceding business day).
"Early Termination Notice Date": Any date as of which either (a) 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 or (b) the outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, the Carmax Credit Lease Loans
and/or the Parkview House Apartments Loan.
"Eligible Account": Any of (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, D-1 by
DCR, 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, DCR 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
qualify, withdraw or downgrade any of its ratings on the Certificates; (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 (iii)
(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. Accounts held at LaSalle National Bank shall be deemed to be
Eligible Accounts, unless the ratings of its long term unsecured debt
obligations or short term unsecured debt obligations are downgraded or LaSalle
National Bank is no longer eligible as Trustee pursuant to Section 8.06 hereof.
"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 or (ii) an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account may be
a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer pursuant
to the related Mortgage, Cash Collateral Agreement, Lock-Box Agreement or Loan
Agreement for the account of such Borrower for application toward the payment of
taxes, insurance premiums, assessments and similar items in respect of the
related Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer Event
of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised Mortgage Rate, interest accrued
on such Mortgage Loan allocable to the Excess Rate. The Excess Interest shall
not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(e), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6, Excess Interest Distribution
Account" and which must be an Eligible Account. The Excess Interest Distribution
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated on the
Mortgage Loan Schedule as having a Revised Mortgage Rate, the excess of (i) the
applicable Revised Mortgage Rate over (ii) the applicable Mortgage Rate, each as
set forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as it may be amended
from time to time.
"Exchange Act Report": A monthly Distribution Date Statement, Comparative
Financial Status Report, Delinquent Loan Status Report, Historical Loss Estimate
Report, Historical Loan Modification Report, REO Status Report, Operating
Statement Analysis, NOI Adjustment Worksheet, Watch List, or report pursuant to
Section 4.02(b) or Annual Compliance Report to be filed with the Commission,
under cover of the related form required by the Exchange Act.
"Extension Case": As defined in Section 3.30(c).
"Fair Market Value": As defined in Section 3.30(e).
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHA": The Federal Housing Administration, or any successor thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or Mortgage Loan subject to repurchase by the Depositor or the
Mortgage Loan Seller pursuant to Sections 2.03(d) or 2.03(e), the recovery of
all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and
other payments or recoveries (including proceeds of the final sale of any REO
Property) which the Servicer (or in the case of a Specially Serviced Mortgage
Loan, the Special Servicer), in its reasonable judgment as evidenced by a
certificate of a Servicing Officer delivered to the Trustee and the Custodian
(and the Servicer, if the Certificate is from the Special Servicer), expects to
be finally recoverable. The Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Servicer hereunder and the transfer of such records to a
successor servicer and (ii) five years following the termination of the Trust
Fund.
"Financial Market Publisher": Bloomberg, L.P., Intex Solutions, Inc.,
Charter Research Corporation, Wall Street Analytics, Inc., and the Trepp Group.
"Financing Trust": Nomura Financing Trust ST I, a Delaware business trust.
"Financing Trust 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 Financing Trust, a copy of which is attached hereto as
Exhibit H-2.
"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 IBCA, Inc., or its successor in interest.
"Fixed Voting Rights Percentage": As defined in the definition of "Voting
Rights."
"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 A-CS1,
Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, and Class B-6 Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Loan Modification Report": A report substantially containing
the content described in Exhibit M-3 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, have been modified
pursuant to this Agreement (i) during the related Collection Period and (ii)
since the Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
content described in Exhibit M-4 attached hereto, setting forth, among other
things, as of the close of business on the Due Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds and
Liquidation Expenses, both for the current period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; and with
respect to any Lower-Tier Regular Interest, the Trustee.
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Servicer,
the Special Servicer, any Borrower or Manager or any Affiliate thereof, and (ii)
is not connected with any such Person thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer nor the Special Servicer shall be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel (at the expense of the party seeking to be
deemed an Independent) addressed to the Servicer and the Trustee has been
delivered to the Trustee to that effect) or (ii) any other Person (including the
Servicer and the Special Servicer) if the Servicer, on behalf of itself and the
Trustee, has received an Opinion of Counsel (at the expense of the party seeking
to be deemed an Independent Contractor) to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"Instructions": As defined in Section 3.30(d).
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Certificates (other than the Class A-CS1, Class PS-1, Class V-1, Class
V-2, Class R and Class LR Certificates), an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Certificate Balance or Notional Balance, as applicable (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
shall be deemed to have been made on the first day of such Interest Accrual
Period). The "Interest Accrual Amount" with respect to any Distribution Date and
the Class A-CS1 Certificates is equal to interest for the related Interest
Accrual Period at the Pass-Through Rate for such Class for such Interest Accrual
Period on the Notional Balance of such class (provided, that any reductions in
the Notional Balance of such Class as a result of distributions in reduction of
the Certificate Balance of the Class A-1A Certificates or allocations of
Realized Losses to the Certificate Balance of the Class A-1A Certificates on the
Distribution Date occurring in an Interest Accrual Period, shall be deemed to
have occurred on the first day of such Interest Accrual Period). The "Interest
Accrual Amount" with respect to any Distribution Date and the Class PS-1
Certificates shall be equal to interest for the related Interest Accrual Period
at the Pass-Through Rate for such Class for such Interest Accrual Period on the
Notional Balance of such Class (provided, that any reductions in the Notional
Balance of such Class as a result of principal distributions on Mortgage Loans
or Realized Losses with respect to Mortgage Loans distributable or allocable on
the Lower-Tier Regular Interests on the Distribution Date occurring in an
Interest Accrual Period shall be deemed to have occurred on the first day of
such Interest Accrual Period). Calculations of interest due in respect of the
Certificates shall be made on the basis of a 360-day year consisting of twelve
30-day months.
"Interest Accrual Period": With respect to any Distribution Date, the
period which commences on the eleventh day of the month preceding the month in
which such Distribution Date occurs and ends on the tenth day of the month in
which such Distribution Date occurs, provided that the Interest Accrual Period
with respect to the Distribution Date occurring in April 1998 shall be assumed
to consist of 11 days. Interest for each Interest Accrual Period, other than the
Interest Accrual Period with respect to the Distribution Date occurring in April
1998, is calculated based on a 360-day year consisting of twelve 30-day months.
"Interested Person": As of any date of determination, the Depositor, the
Servicer, Special Servicer, the Sub-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.
"Interest Reserve Account": The trust account created and maintained by the
Trustee pursuant to Section 3.27, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of Nomura Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D6, Interest Reserve
Account" and which must be an Eligible Account.
"Interest Reserve Loans": Any Mortgage Loan that provides for interest
based on a 360-day year and the actual number of days elapsed which has a
Mortgage Rate less than or equal to 7.155%.
"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, or any successor thereto.
"Lease Enhancement Policy": With respect to a Credit Lease Loan, the
related insurance policy, if any, covering the exercise by the related credit
tenant of certain rights to terminate or abate rent in the event of a casualty
or condemnation with respect to the related Mortgaged Property.
"Liquidation Expenses": Expenses incurred by the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent 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 revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Accounts in
accordance with the terms of the related Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the Originator or the Mortgage Loan Seller and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lock-out Period" With respect to any Mortgage Loan, the period of time
specified in the related Loan Documents during which voluntary prepayments by
the related Borrower are prohibited.
"Lower Rate": As defined in the definition of Minimum Defaulted Monthly
Payment.
"Lower-Tier Regular Interests": The Class A-1A1-L,, Class A-1A2-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
B-1-L, Class B-2-L, Class B-3-L, Class B-4-L, Class B-5-L, Class B-6-L, Class
B-7-L and Class B-7H-L Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Excess
Interest), collections thereon, any REO Property acquired in respect thereof and
amounts held from time to time in the Collection Account and the Distribution
Account.
"LTV": With respect to any Mortgage Loan and any date of determination, the
outstanding principal balance of such Mortgage Loan as of such date divided by
the appraised value of the Mortgaged Properties securing such Mortgage Loan as
evidenced by an Updated Appraisal obtained by the Servicer or an update thereto.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager for the
related Mortgaged Properties.
"Maturity Date": With respect to each Mortgage Loan, the Maturity Date as
set forth on the Mortgage Loan Schedule.
"Minimum Defaulted Monthly Payment": With respect to any extension pursuant
to Section 3.30(c) of a Mortgage Loan that is delinquent in respect of its
Balloon Payment, an amount equal to (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the original amortization schedule thereof, or, if there is no
amortization schedule, the principal portion of the constant Monthly Payment
that would have been due (in each case calculated with interest at the Mortgage
Rate), assuming such Balloon Payment had not become due, after giving effect to
any modification, and (b) interest at the applicable Default Rate; provided,
however, that the Special Servicer may, in its discretion, agree that the
Minimum Defaulted Monthly Payments may include interest at a rate lower than the
related Default Rate (but in no event lower than the related Mortgage Rate) (the
"Lower Rate"); provided that if, after notice to all Certificateholders, Holders
of Certificates evidencing at least 66-2/3% of the Voting Rights of each Class
(or, that in the event that the Special Servicer is not the Servicer and the
Servicer would not agree to the Lower Rate, Certificateholders representing
greater than (a) 50% of the aggregate Voting Rights of all Certificateholders
and (b) 66-2/3% of the aggregate Voting Rights of all Certificateholders who
respond to such notice within 30 Business Days of the delivery of such notice),
direct the Special Servicer not to agree to permit payments to include interest
at the Lower Rate, the Special Servicer shall not agree to payments with
interest at the Lower Rate, provided, further, that, if the Minimum Defaulted
Monthly Payment is to include interest at the Lower Rate, the Special Servicer
may agree that interest on such Mortgage Loan accrues at the Lower Rate if,
after notice to all Certificateholders, Holders of Certificates evidencing at
least 66-2/3% of the Voting Rights of each Class direct the Special Servicer
that such Mortgage Loan shall accrue interest at the related Default Rate, then
such Mortgage Loan will continue to accrue interest at the Default Rate thereof
and the excess of interest accrued on such Mortgage Loan over the amount
included in the Minimum Defaulted Monthly Payments (i.e., interest at the Lower
Rate) shall be added to the outstanding principal balance of such Mortgage Loan.
Notwithstanding the foregoing, if the Directing Holders have given Instructions
to the Special Servicer to extend, the Special Servicer shall be required to
follow the Directing Holders' Instructions with respect to interest so long as
the Minimum Defaulted Monthly Payment is at least equal to the Lower Rate,
subject to Section 3.30(d) and 3.30(e).
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan or, unless the context otherwise requires, any Mortgage Loan as to
which a Minimum Defaulted Monthly Payment is required to be made hereunder) and
any Due Date, the scheduled monthly payment of principal, if any, and interest
at the Mortgage Rate, excluding any Balloon Payment (but not excluding any
constant Monthly Payment), which is payable by the related Borrower on such Due
Date under the related Note. With respect to an REO Mortgage Loan, the monthly
payment that would otherwise have been payable on the related Due Date had the
related Note not been discharged, determined as set forth in the preceding
sentence and on the assumption that all other amounts, if any, due thereunder
are paid when due.
"Moody's": Moody's Investors Service, Inc., or its successor in interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"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 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 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, Specially Serviced Mortgage Loan or any Mortgage Loan
that has been defeased in whole or in part. Nothing herein shall be deemed to
override the provisions of the Westin Casuarina Co-Lender Agreement.
"Mortgage Loan Purchase and Sale Agreement": Either of the NACC Mortgage
Loan Purchase and Sale Agreement or the Financing Trust Mortgage Loan Purchase
and Sale Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the Trust
Fund as of the Closing Date being attached hereto as Exhibit B, which list shall
set forth the following information with respect to each Mortgage Loan:
(a) the Loan Number;
(b) the property name, city and state where each related Mortgaged
Property is located;
(c) the annual debt service;
(d) the Mortgage Rate;
(e) the Revised Mortgage Rate, if applicable;
(f) the Maturity Date;
(g) the Stated Principal Balance as of the Cut-off Date and, as
applicable, the allocation of such balance to each related
Mortgaged Property;
(h) the Originator of such Mortgage Loan; and
(i) whether the Mortgage Loan is an Actual/360 Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (g) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may also set forth, for selected Mortgage Loans, the net
operating income or debt service coverage ratio. The Mortgage Loan Schedule may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Sellers": shall mean NACC and the Financing Trust.
"Mortgage Pass-Through Rate": With respect to the Mortgage Loans that
provide for calculations of interest based on twelve months of 30 days each, the
Mortgage Pass-Through Rate for any Interest Accrual Period is equal to the
Mortgage Rate thereof. The Mortgage Pass-Through Rate with respect to the
Actual/360 Mortgage Loans for any Interest Accrual Period, is equal to the
Mortgage Rate thereof multiplied by a fraction the numerator of which is the
actual number of days in such Interest Accrual Period and the denominator of
which is 30. The Mortgage Pass-Through Rate with respect to the Interest Reserve
Loans for any Distribution Date (a) relating to any Interest Accrual Period
commencing in any January, February, April, June, September and November and in
any December occurring in a year immediately preceding any year which is not a
leap year, is the Mortgage Rate thereof, and (b) relating to any Interest
Accrual Period commencing in any March, May, July, August and October and in any
December occurring in a year immediately preceding a year which is a leap year,
is equal to the Mortgage Rate thereof multiplied by a fraction the numerator of
which is the actual number of days in such Interest Accrual Period and the
denominator of which is 30. Notwithstanding the foregoing, the Mortgage
Pass-Through Rate with respect to each Mortgage Loan for the first Interest
Accrual Period is the Mortgage Rate thereof.
"Mortgage Rate": With respect to each Mortgage Loan and any Interest
Accrual Period, the annual rate, not including any Excess Rate, at which
interest accrues on such Mortgage Loan during such period (in the absence of a
default), as set forth on the Mortgage Loan Schedule. The Mortgage Rate for
purposes of calculating the Weighted Average Net Mortgage Pass-Through Rate
shall be the Mortgage Rate of such Mortgage Loan without taking into account any
reduction in the interest rate by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or a reduction in
interest or principal due to a modification pursuant to Section 3.30 hereof.
"NACC": Nomura Asset Capital Corporation, a Delaware corporation, or its
successor.
"NACC 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 NACC, a copy of which is attached hereto as Exhibit H-1.
"Net Default Interest": As defined in Section 3.05(d).
"Net Income": With respect to any REO Property, all income received in
connection with such REO Property, less any operating expenses, including, but
not limited to, utilities, real estate taxes, property management fees,
insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"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, for any Mortgage Loan the aggregate of the
applicable Servicing Fee Rate, Additional Servicing Fee Rate and Trustee Fee
Rate.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds with
respect to such REO Property net of any insurance premiums, taxes, assessments
and other costs and expenses permitted to be paid therefrom pursuant to Section
3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
Special Servicer, as the case may be, substantially containing the content
described in Exhibit M-8 attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit M-8 to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"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, in any event, an appraisal conducted by an MAI
appraiser or any Updated Appraisal thereof conducted within the past 12 months;
copies of such documents to be included with the certificate of a Servicing
Officer or 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 or the Special 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 U.S. Person.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage Loan, including any amendments or
modifications, or any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee by the
Servicer or any Holder of a Class LR Certificate pursuant to Section 9.01(c).
"Notional Amount" or "Notional Balance": With respect to each of the Class
PS-1 and Class A-CS1 Certificates, (a) on or prior to the Distribution Date
occurring in April 1998, a notional principal amount equal to the aggregate
initial Notional Balance of such Class, as specified in the Preliminary
Statement hereto, and (b)(i) in the case of the Class A-CS1 Certificates, as of
any date of determination after the Distribution Date occurring in April 1998,
an amount equal to the excess of the Certificate Balance of the Class A-1A
Certificates over the Class A-1A Component 2 Balance, in each case on the
Distribution Date immediately prior to such date of determination, after
distributions of principal on the Class A-1A Certificates and allocations of
Realized Losses on such Class on such prior Distribution Date and (ii) in the
case of the Class PS-1 Certificates, as of any Distribution Date after April
1998 a notional principal amount equal to the aggregate Stated Principal Balance
of the Mortgage Loans as of the first day of the related Interest Accrual
Period.
"NSI": As defined in Section 2.03(j)(ii).
"NSI Certificates": As defined in Section 2.03(j)(xi).
"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 or
employee designated as a Servicing Officer by the Servicer 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 or employee designated as a Servicing 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.
"Operating Statement Analysis": With respect to each Mortgage Loan and REO
Property, a report substantially containing the content described in Exhibit M-7
attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Servicer,
as the case may be, acceptable to the Trustee, except that any opinion of
counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor") or (c) a
resignation of the Servicer pursuant to Section 6.04, must be an opinion of
counsel who is Independent of the Depositor and the Servicer.
"Originator": Any of (i) NACC and (ii) Bloomfield Acceptance Company, LLC.
"Originator Purchase Agreement": The Bloomfield Purchase Agreement.
"Other Mortgage Loans": As defined in Section 2.01(b).
"Other Westin Casuarina Loan": As defined in Section 2.01(b).
"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 from and including the date of the
making of such P&I Advance through and including the date of payment or
reimbursement.
"Park LaBrea Loan": The Mortgage Loan secured by a mortgage on the
Mortgaged Property known as Park LaBrea Apartments and identified as Loan Number
3 on the Mortgage Loan Schedule.
"Parkview House Apartments Loan": The Mortgage Loan secured by a mortgage
on the Mortgaged Property known as Parkview House Apartments and identified as
Loan Number 314 on the Mortgage Loan Schedule.
"Pass-Through Rate": With respect to each Class of Certificates (other than
the Class V-1, Class V-2, Class R and Class LR Certificates), the Pass-Through
Rate for such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1A Class A-1A Pass-Through Rate
Class A-1B Class A-1B Pass-Through Rate
Class A-1C Class A-1C Pass-Through Rate
Class A-CS1 Class A-CS1 Pass-Through Rate
Class PS-1 Class PS-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class A-4 Class A-4 Pass-Through Rate
Class A-5 Class A-5 Pass-Through Rate
Class B-1 Class B-1 Pass-Through Rate
Class B-2 Class B-2 Pass-Through Rate
Class B-3 Class B-3 Pass-Through Rate
Class B-4 Class B-4 Pass-Through Rate
Class B-5 Class B-5 Pass-Through Rate
Class B-6 Class B-6 Pass-Through Rate
Class B-7 Class B-7 Pass-Through Rate
Class B-7H Class B-7H Pass-Through Rate
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class V-1, Class V-2,
Class R and Class LR Certificates), the percentage interest is equal to the
initial denomination of such Certificate divided by the initial Certificate
Balance or Notional Balance, as applicable, of such Class of Certificates. With
respect to any Class V-1, Class V-2, Class R or Class LR Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Servicer, the Trustee or any
of their respective Affiliates and having at all times the required ratings, if
any, provided for in this definition, unless each Rating Agency shall have
confirmed in writing to the Servicer that a lower rating would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment of
principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by
the full faith and credit of the United States of America
including, without limitation, obligations of: the U.S. Treasury
(all direct or fully guaranteed obligations), the Farmers Home
Administration (certificates of beneficial ownership), the General
Services Administration (participation certificates), the U.S.
Maritime Administration (guaranteed Title XI financing), the Small
Business Administration (guaranteed participation certificates and
guaranteed pool certificates), the U.S. Department of Housing and
Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds);
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 S&P, DCR,
Moody's or Fitch, otherwise acceptable to S&P, DCR, Moody's or
Fitch, as applicable, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification
or withdrawal of the then current ratings assigned to the
Certificates); 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) insured 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 S&P, DCR, Moody's or Fitch, otherwise
acceptable to S&P, DCR, Moody's or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates); 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 S&P, DCR, Moody's or
Fitch, otherwise acceptable to S&P, DCR, Moody's or Fitch, as
applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the
Certificates) in its highest long-term unsecured rating category;
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 S&P, DCR,
Moody's or Fitch, otherwise acceptable to S&P, DCR, Moody's or
Fitch, as applicable, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification
or withdrawal of the then current ratings assigned to the
Certificates) in its highest short-term unsecured debt rating;
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
S&P, DCR, Moody's or Fitch, otherwise acceptable to S&P, DCR,
Moody's or Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned
to the Certificates); and
(ix) any other demand, money market or time deposit, demand obligation
or any other obligation, security or investment, provided that
each Rating Agency has confirmed in writing to the Servicer,
Special Servicer or Trustee, as applicable, that such investment
would not, in and of itself, result in a downgrade, qualification
or withdrawal of the then current ratings assigned to the
Certificates;
provided, however, that, with respect to clause (ix) above, in the judgment of
the Servicer, such instrument qualifies as a "cash flow investment" pursuant to
Code Section 860G(a)(6) earning a passive return in the nature of interest and
provided, further 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 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).
"Post-lock out Return of Fee Amount": Any Return of Fee Amount paid on a
Mortgage Loan in respect of an Unscheduled Payment on such Mortgage Loan
received after the expiration of the related Lock-out Period.
"Pre-lock out Return of Fee Amount": Any Return of Fee Amount paid on a
Mortgage Loan in respect of an Unscheduled Payment on such Mortgage Loan
received prior to the expiration of the related Lock-out Period.
"Prepayment Assumption": The assumption that each Mortgage Loan with an
Anticipated Repayment Date prepays on such date and that each other Mortgage
Loan does not prepay prior to its respective Maturity Date.
"Prepayment Interest Shortfall": With respect to any Distribution Date, the
amount of any shortfall in collections of interest (adjusted to the applicable
Net Mortgage Pass-Through Rate plus the Trustee Fee) resulting from a Principal
Prepayment on such Mortgage Loan during the related Collection Period and prior
to the related Due Date other than Prepayment Interest Shortfalls relating to
any Specially Serviced Mortgage Loan.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
a Principal Prepayment thereon, not otherwise due thereon in respect of
principal or interest, including any Pre-lock out Return of Fee Amount but
excluding any Post-lock out Return of Fee Amounts, other than an amount paid in
connection with the release of the related Mortgaged Property through
defeasance, which are intended to compensate the holder of the related Note for
prepayment.
"Principal Distribution Amount": For any Distribution Date will be equal to
the sum of:
(i) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) due on the Mortgage Loans on or before the
related Due Date (if received or advanced);
(ii) the principal component of all Assumed Scheduled Payments or
Minimum Defaulted Monthly Payments, as applicable, due on or
before the related Due Date (if received or advanced) with respect
to any Mortgage Loan that is delinquent in respect of its Balloon
Payment;
(iii) the Stated Principal Balance of each Mortgage Loan that was,
during the related Collection Period, repurchased from the Trust
Fund in connection with the breach of a representation or warranty
pursuant to Section 2.03 or purchased from the Trust Fund pursuant
to Section 9.01;
(iv) the portion of Unscheduled Payments allocable to principal of any
Mortgage Loan that was liquidated during the related Collection
Period;
(v) the principal component of all Balloon Payments and, to the extent
not included in the preceding clauses, any other principal payment
on any Mortgage Loan received on or after the Maturity Date
thereof, to the extent received during the related Collection
Period;
(vi) to the extent not included in the preceding clauses (iii) or (iv),
all other Principal Prepayments received in the related Collection
Period; and
(vii) to the extent not included in the preceding clauses, any other
full or partial recoveries in respect of principal, including
Insurance Proceeds, Liquidation Proceeds and Net REO Proceeds
received in the related Collection Period (in the case of clauses
(i) through (vii) net of any reimbursement for related outstanding
P&I Advances allocable to principal and amounts received on a
Mortgage Loan which represent recoveries in respect of any
Subordinate Class Advance 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 the Borrower on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Private Global Certificate": Each of the Regulation S Global Certificates
or Rule 144A Global Certificates with respect to the Class B-1, B-2, B-3, B-4,
B-5 and B-6 Certificates if and so long as such class of Certificates is
registered in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums or as a result of expenses incurred relating to a breach of a
representation, warranty or covenant, pursuant to Section 2.03(e), 3.04 or
Section 3.24, as applicable, or any other expense specified as a Property
Advance herein. 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": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred by or on behalf of the Servicer or
Special Servicer (without duplication of any amount that constitutes a Property
Advance) in connection with the servicing of a Mortgage Loan which are
"unanticipated," within the meaning of Treasury Regulations Section
1.860G-1(b)(iii), or any such costs and expenses incurred in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) the preservation, insurance, restoration, protection and management of a
Mortgaged Property, including the cost of any "forced placed" insurance policy
purchased by the Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Servicer or the Special Servicer is required to
cause to be insured pursuant to Section 3.08, (b) obtaining any Insurance
Proceeds or any Liquidation Proceeds of the nature described in clauses (ii) or
(iii) of the definition of "Liquidation Proceeds," (c) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including, without
limitation, foreclosures, (d) any Updated Appraisal or other appraisal and (e)
the operation, management, maintenance and liquidation of any REO Property,
including, without limitation, appraisals. Notwithstanding anything to the
contrary, "Property Protection Expenses" shall not include allocable overhead of
the Servicer or the Special Servicer, which shall include costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses.
"Prospectus": The Depositor's Prospectus Supplement dated March 27, 1998
relating to the Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates.
"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, DCR and Fitch (if such company is not rated by Fitch a rating of
at least A-1X by A.M. Best's Key Rating Guide may be substituted for such Fitch
rating) and an insurance financial strength rating of "A2" 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, DCR and Fitch (or,
if such company is not rated by Fitch a rating of at least A-1X by A.M. Best's
Key Rating Guide may be substituted for such Fitch rating) and an insurance
financial strength rating of "A2" or better by Moody's and (iii) in the case of
the fidelity bond and the errors and omissions insurance required to be
maintained pursuant to Section 3.08(c), shall have a claims paying ability rated
by each Rating Agency no lower than two ratings categories (without regard to
pluses or minuses or numeric qualifications) lower than the highest rating of
any outstanding Class of Certificates from time to time (or if such company is
not rated by Fitch a rating of at least A-VIII by A.M. Best's Key Rating Guide
may be substituted for such Fitch rating), but in no event lower than "BBB" by
S&P, DCR and Fitch and an insurance financial strength rating of "A2" by
Moody's, unless in any such case each of the Rating Agencies has confirmed in
writing that obtaining the related insurance from an insurance company that is
not rated by each of the Rating Agencies (subject to the foregoing exceptions)
or that has a lower claims-paying ability than such requirements shall not
result, in and of itself, in a downgrade, qualification or withdrawal of the
then current ratings by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Rated Final Distribution Date": March 15, 2030, the next Distribution Date
occurring two years after the latest Assumed Maturity Date of any of the
Mortgage Loans.
"Rating Agency": Any of Fitch, Moody's, DCR or S&P. References herein to
the highest long-term unsecured debt rating category of a Rating Agency shall
mean "AAA" with respect to Fitch, DCR and S&P and "Aaa" with respect to Moody's
and in the case of any other rating agency shall mean such highest rating
category or better without regard to any plus or minus or numerical
qualification.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans 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(a)(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, prior to April 10, 1998 the Record Date shall be the Closing Date.
"Reduction Interest Distribution Amount": For the Class PS-1 Certificates,
with respect to any Distribution Date and each of clauses seventh, eleventh,
fifteenth, nineteenth, twenty-third, twenty-seventh, thirty-first, thirty-fifth,
thirty-ninth, forty-third and forty-sixth of Section 4.01(b) shall be the amount
of interest accrued for the Interest Accrual Period at the applicable Reduction
Interest Pass-Through Rate for such Interest Accrual Period on the aggregate
amount of Appraisal Reduction Amounts and Delinquency Reduction Amounts
notionally allocated to the related classes referred to in subclause (B) of each
such clause as of such Distribution Date, pursuant to Section 4.01(i).
"Reduction Interest Pass-Through Rate": (i) With respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-7 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 6.000%, (ii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-6 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 6.000%, (iii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-5 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 6.000%, (iv) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-4 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 6.000%, (v) with respect to Appraisal Reduction
Amounts and Delinquency Reduction Amounts notionally allocated to the Class B-3
Certificates pursuant to Section 4.01(i), the Weighted Average Net Mortgage
Pass-Through Rate minus 6.000%, (vi) with respect to Appraisal Reduction Amounts
and Delinquency Reduction Amounts notionally allocated to the Class B-2
Certificates pursuant to Section 4.01(i), the Weighted Average Net Mortgage
Pass-Through Rate minus 6.000%, (vii) with respect to Appraisal Reduction
Amounts and Delinquency Reduction Amounts notionally allocated to the Class B-1
Certificates pursuant to Section 4.01(i), the Weighted Average Net Mortgage
Pass-Through Rate minus 6.000%, (viii) with respect to Appraisal Reduction
Amounts and Delinquency Reduction Amounts notionally allocated to the Class A-5
Certificates pursuant to Section 4.01(i), 0.45%, (ix) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class A-4 Certificates pursuant to Section 4.01(i), 0.58%, (x) with respect to
Appraisal Reduction Amounts and Delinquency Reduction Amounts notionally
allocated to the Class A-3 Certificates pursuant to Section 4.01(i), 0.95% and
(xi) with respect to Appraisal Reduction Amounts and Delinquency Reduction
Amounts notionally allocated to the Class A-2 Certificates pursuant to Section
4.01(i), 1.16%.
"Reduction Interest Shortfalls": With respect to any Distribution Date and
each of the clauses seventh, eleventh, fifteenth, nineteenth, twenty-third,
twenty-seventh, thirty-first, thirty-fifth, thirty-ninth, forty-third and
forty-sixth of Section 4.01(b), any shortfall in the Reduction Interest
Distribution Amount required to be distributed to the Class PS-1 Certificates
pursuant to such clause on such Distribution Date.
"Regular Certificates": The Class A-1A, Class A-1B, Class A-1C, Class
A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7 and Class B-7H
Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class B-1 Certificates,
Class B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class
B-5 Certificates and Class B-6 Certificates issued as such on the Closing Date.
"Regulation S Investor": With respect to a transferee of an interest in a
Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section 5.02(c)(i)(B).
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class or Classes of Lower-Tier Regular Interests, the related Class of
Certificates set forth below and for any Class of Certificates (other than the
Class PS-1, Class A-CS1, Class V-1, Class V-2, Class R and Class LR), the
related Class of Lower-Tier Regular Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ---------------------
Class A-1A Class A-1A-L Interest
Class A-1B Class A-1B-L Interest
Class A-1C Class A-1C-L Interest
Class A-2 Class A-2-L Interest
Class A-3 Class A-3-L Interest
Class A-4 Class A-4-L Interest
Class A-5 Class A-5-L Interest
Class B-1 Class B-1-L Interest
Class B-2 Class B-2-L Interest
Class B-3 Class B-3-L Interest
Class B-4 Class B-4-L Interest
Class B-5 Class B-5-L Interest
Class B-6 Class B-6-L Interest
Class B-7 Class B-7-L Interest
Class B-7H Class B-7H-L Interest
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect
to such REO Property, if the determination of such amount depends
in whole or in part on the income or profits derived by any Person
from such property (unless such amount is a fixed percentage or
percentages of receipts or sales and otherwise constitutes Rents
from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5) of
the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such
REO Property;
(iv) any amount charged for services that are not customarily furnished
in connection with the rental of property to tenants in buildings
of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section
1.856-4(b)(1) (whether or not such charges are separately stated);
and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such
REO Property and, for any taxable year of the Trust Fund, such
rent is no greater than 15 percent of the total rent received or
accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Special Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit M-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Due Date immediately preceding the preparation of such
report, (i) the acquisition date of such REO Property, (ii) the amount of income
collected with respect to any REO Property net of related expenses and other
amounts, if any, received on such REO Property during the related Collection
Period and (iii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such date of determination (including any prepared internally by the Special
Servicer).
"Repurchase Price": With respect to any Mortgage Loan to be repurchased
pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially Serviced Mortgage
Loan or any REO Mortgage Loan to be sold or repurchased pursuant to Section
3.18, an amount, calculated by the Servicer, equal to:
(i) the unpaid principal balance of such Mortgage Loan as of the Due
Date as to which a payment was last made by the Borrower (less any
Advances previously made on account of principal); plus
(ii) unpaid accrued interest from the Due Date as to which interest was
last paid by the Borrower up to the Due Date in the month
following the month in which the purchase or repurchase occurred
at a rate equal to the Mortgage Rate on the unpaid principal
balance of such Mortgage Loan (less any Advances previously made
on account of interest); plus
(iii) any unreimbursed Advances and unpaid Servicing Fees, Trustee Fees
and Special Servicing Compensation allocable to such Mortgage Loan
together with interest thereon at the Advance Rate; plus
(iv) in the event that the Mortgage Loan is required to be repurchased
pursuant to Sections 2.03(d) or 2.03(e), expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer
or the Trustee in respect of the breach or defect giving rise to
the repurchase obligation, including any expenses arising out of
the enforcement of the repurchase obligation.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve Account may be a sub-account of a related Cash Collateral
Account. Any Reserve Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive the reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. The Servicer shall be permitted to make withdrawals therefrom for
deposit into the related Cash Collateral Account, if applicable, or the
Collection Account or for the purposes set forth under the related Mortgage
Loan.
"Residual Value Policy": With respect to the credit leases related to the
Best Buy Credit Lease Loan, the related insurance policy insuring against the
diminution in value of the related Mortgaged Property.
"Responsible Officer": Any officer of the Asset-Backed Securities Trust
Services Group 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.
"Return of Fee Amount": Any amount paid under any Mortgage Loan that is
applied by the Servicer (in accordance with Section 3.28(d) hereof) to the
payment of a "Return of Fee Amount," "Return of Premium," "Unearned Premium" or
other similar amount due under such Mortgage Loan as specified in the Loan
Documents.
"Revised Mortgage Rate": With respect to the Mortgage Loans, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for each applicable Mortgage Loan, as calculated and as set forth in the related
Mortgage Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class B-1 Certificates, Class
B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class B-5
Certificates and Class B-6 Certificates issued as such on the Closing Date.
"S&P": Standard & Poor's Ratings Services, or its successor in interest.
"Scheduled Final Distribution Date": As to each Class of Certificates,
March 15, 2028, which is the next Distribution Date occurring after the latest
maturity date of any Mortgage Loan.
"Securities Legend": With respect to each Residual Certificate or any
Individual Certificate, the legend set forth in, and substantially in the form
of, Exhibit G hereto.
"Series 1997-D5": As defined in Section 2.01(b).
"Servicer": AMRESCO Services, L.P., a Delaware limited partnership, 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 a 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 attributable to the
Mortgage Loan being prepaid and the investment income accruing on the related
Principal Prepayment 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, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Trustee may from time to time agree.
"Servicer's Appraisal Estimate": As defined in the definition of Appraisal
Reduction Amount.
"Servicing Compensation": With respect to any Distribution Date, the
related Servicing Fee and any other fees, charges or other amounts payable to
the Servicer on such Distribution Date.
"Servicing Fee": With respect to each Mortgage Loan 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 (which amount does not include any balance on any Other
Mortgage Loans) 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 0.050% 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 or employee 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 in the
exercise of 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 comparable to the Mortgage Loans
(including, in the case of the Special Servicer, REO Mortgage Loans) and held
for other similar third-party portfolios or (ii) administers mortgage loans
(including, in the case of the Special Servicer, REO Mortgage Loans) for its own
account, whichever standard is higher, but without regard to:
(i) any known relationship that the Servicer, the Special Servicer,
any subservicer or any Affiliate of the Servicer, the Special
Servicer or any subservicer may have with any Borrower or any
other parties to the Pooling and Servicing Agreement or any
Mortgage Loan Seller;
(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 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;
(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; or
(vi) to the extent that an Affiliate of the Mortgage Loan Sellers
becomes the Servicer or Special Servicer, any obligation of a
Mortgage Loan Seller to repurchase any Mortgage Loan.
"Similar Law": As defined in Section 5.02(k) hereof.
"Special Mortgage Loans": The Mortgage Loans known as the Park LaBrea Loan,
the Springfield Mall Loan and the Atlanta Marriott Marquis Loan.
"Special Servicer": CRIIMI MAE Services Limited Partnership, a Maryland
limited partnership, or its successor in interest, or any successor Special
Servicer appointed as provided in Section 3.25. In the event that at any time
the Servicer is also the Special Servicer hereunder, and the Servicer is
terminated or resigns as the Servicer hereunder, the Servicer shall be
terminated as the Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Additional Servicing Fee and Special Servicing Fee which shall be due to the
Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and any Distribution Date, an amount per Special Servicing Period equal to
the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan as of the Due
Date (after giving effect to all payments of principal on such Specially
Serviced Mortgage Loan on such Due Date) in the month preceding the month in
which such Distribution Date occurs. Notwithstanding the foregoing, the Special
Servicing Fee on any Mortgage Loan which is evidenced by a Note that is pari
passu to a Note evidencing another Mortgage Loan (except for the Western
Casuarina Resort Loan) shall equal an amount per Special Servicing Period equal
to the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
combined Stated Principal Balances of the Mortgage Loans evidenced by the pari
passu Notes, provided that the Special Servicing Fee with respect to the
principal balance of the related Special Mortgage Loan shall be paid from the
Collection Account and the Special Servicing Fee with respect to the principal
balance of the related Other Mortgage Loan shall be payable under the related
co-lender agreement (which amount may be netted against amounts payable to the
holder of the note evidencing the Other Mortgage Loan).
"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 50% of the Voting Rights of the most
subordinate Class of Certificates then outstanding, the Special Servicer shall
provide written notice thereof to the Servicer and the 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.
"Specially Serviced Mortgage Loan": Subject to Section 3.26, and except for
the Westin Casuarina Resort Loan, 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);
(ii) the Servicer, the Trustee or the Fiscal Agent, individually or
collectively, have made four consecutive P&I Advances (regardless
of whether such P&I Advances have been reimbursed);
(iii) the related Borrower has expressed to the Servicer an inability to
pay or a hardship in paying the Mortgage Loan in accordance with
its terms;
(iv) the Servicer has received notice that the Borrower has become the
subject of any bankruptcy, insolvency or similar proceeding,
admitted in writing the inability to pay its debts as they come
due or made an assignment for the benefit of creditors;
(v) the Servicer has received notice of a foreclosure or threatened
foreclosure of any lien on the Mortgaged 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);
(vii) the Special Servicer proposes to commence foreclosure or other
workout arrangements;
(viii) the related Borrower has failed to make a Balloon Payment as and
when due unless the Servicer reasonably believes (consistent with
the Servicing Standard) that the Balloon Payment will be paid
within 90 days of its Due Date; or
(ix) in the opinion of the Servicer (consistent with the Servicing
Standard) a default under a Mortgage Loan is imminent and such
Mortgage Loan deserves the attention of the Special Servicer.
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause (i) or (ii) or
(viii) above, when the Borrower thereunder has brought the Mortgage
Loan current (or, with respect to the circumstances described in
clause (viii), pursuant to any work-out implemented by the Special
Servicer) and thereafter made three consecutive full and timely
Monthly Payments (including pursuant to any workout of the Mortgage
Loan);
(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 Special Servicer; or
(c) with respect to the circumstances described in clause (vi) above, when
such default is cured;
provided further, however, that at that time no circumstance identified in
clauses (i) through (vii) above exists that would cause the Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan.
"Spread Rate": The Spread Rate for each Class of Certificates is as set
forth below:
Class Spread Rate
----- -----------
Class A-CS1........................... 3.00%
Class PS-1............................ 2.15%
Class A-1A............................ 0.58%
Class A-1B............................ 0.81%
Class A-1C............................ 0.90%
"Springfield Mall Loan": The Mortgage Loan secured by a mortgage on the
Mortgaged Property known as the Springfield Mall and identified as Loan Number [
] on the Mortgage Loan Schedule.
"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 (including
Subordinate Class Advance Amounts) by the Servicer, Trustee, or Fiscal Agent,
(ii) all voluntary and involuntary principal prepayments or Balloon Payments and
other unscheduled collections of principal received with respect to such
Mortgage Loan and (iii) any principal forgiven by the Special Servicer. 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 (or, in the case
of the Westin Casuarina Resort Loan, the trust fund associated with Series
1997-D5) is equal to the principal balance thereof outstanding on the date on
which such title is acquired less any Net REO Proceeds allocated to principal on
such Mortgage Loan. The Stated Principal Balance of a Specially Serviced
Mortgage Loan with respect to which the Servicer or Special Servicer has made a
Final Recovery Determination is zero.
"Subordinate Class Advance Amount": As defined in Section 4.06(d).
"Sub-Servicer": Nomura Asset Capital Services LLC.
"Successor Manager": As defined in Section 3.19(b) below.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date (other than interest accrued prior to
the Cut-Off Date); (iii) any REO Property; (iv) all revenues received in respect
of any REO Property; (v) the Servicer's, the Special Servicer's and the
Trustee's rights under the insurance policies with respect to the Mortgage Loans
required to be maintained pursuant to this Agreement and any proceeds thereof
(including, without limitation, any Lease Enhancement Policy); (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 are not assets
of the respective Borrowers), the Collection Account, the Distribution Account,
the Upper-Tier Distribution Account, the Excess Interest Distribution Account,
Interest Reserve Account and the Default Interest Distribution Account,
including reinvestment income; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the rights and remedies under the
Mortgage Loan Purchase and Sale Agreements and the Bloomfield Purchase
Agreement; and (xi) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower).
"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 0.002% per annum.
"Trust-Indemnified Party": As defined in Section 8.05(d).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Underwriters": Nomura Securities International, Inc., Morgan Stanley & Co.
Inc., and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"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 by an appraiser who is an MAI, the costs of which shall be
paid as a Property Advance by the Servicer. Updated Appraisals shall be
conducted by an appraiser who is an MAI selected by the Servicer.
"Upper-Tier Distribution Account": The trust account or accounts (i)
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 Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6, Upper-Tier Distribution
Account" and which must be an Eligible Account or (ii) maintained as a
subaccount of the Distribution Account pursuant to Section 3.06(c).
"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.
"U.S. Person": A citizen or resident of the United States, a corporation,
partnership (except to the extent provided in applicable Treasury Regulations),
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 court
within the United States is able to exercise primary supervision over the
administration of such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
"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) 0.13% in the case of the Class A-CS1
Certificates, 2.76% in the case of the Class PS-1 Certificates (the sum of such
percentages for each such Class outstanding is the "Fixed Voting Rights
Percentage"); provided that the Voting Rights of (i) the Class ACS-1
Certificates will be reduced to zero upon the reduction of the Notional Balance
of such class to zero, and (ii) the Class PS-1 Certificates will be reduced to
zero on the Distribution Date on which none of the A-1B, Class A-1C, Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates are outstanding, (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 B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, and Class B-7H Certificates, a percentage equal to the product
of (i) 100% minus the Fixed Voting Rights Percentage multiplied by (ii) a
fraction, the numerator of which is equal to the aggregate outstanding
Certificate Balance of any such Class and the denominator of which is equal to
the aggregate outstanding Certificate Balances of all Classes of Certificates.
The Class A-CS1, Class PS-1 Certificates shall not be entitled to vote with
respect to proposed extensions of a Specially Serviced Mortgage Loan. The Voting
Rights of any Class of Certificates shall be allocated among Holders of
Certificates of such Class in proportion to their respective Percentage
Interests. The aggregate Voting Rights of Holders of more than one Class of
Certificates shall be equal to the sum of the products of each such Holder's
Voting Rights and the percentage of Voting Rights allocated to the related Class
of Certificates. Any Certificateholder may transfer its Voting Rights without
transferring its ownership interest in the related Certificates provided that
such Certificateholder provides notice of such transfer to the Trustee prior to
the effectiveness of such transfer. The Voting Rights of each Class of
Certificates will be deemed to be reduced on any day on which an Appraisal
Reduction Amount is allocated to such Class pursuant to Section 4.06(e). The
Fixed Voting Right Percentage of the Class A-CS1 Certificates shall be
proportionally reduced upon the allocation of Appraisal Reduction Amounts with
respect to the Class A-1A Certificates pursuant to Section 4.06(e) based on the
amount of such reduction. The Fixed Voting Right Percentage of the Class PS-1
Certificates shall be proportionally reduced upon the allocation of Appraisal
Reduction Amounts to the Class A-1B, Class A-1C, Class A-2, Class A-3, Class
A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Certificates pursuant to Section 4.06(e) based on the amount of such
reduction.
"Watch List": A report substantially containing the content described in
Exhibit M-6 attached hereto, setting forth, among other things, any Mortgage
Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan.
"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 for each Mortgage
Loan of (i) the Net Mortgage Pass-Through Rate for such 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 all such Mortgage Loans, as of
their respective Due Date preceding the prior Distribution Date.
"Weighted Average Pass-Through Rate": With respect to any Interest Accrual
Period, a fraction (expressed as a percentage), the numerator of which is the
sum of (i) the sum of the products of (A) the Pass-Through Rate with respect to
each Class of Certificates having a Pass-Through Rate (other than the Class PS-1
and Class A-CS1 Certificates) and (B) the Certificate Balance of such Class as
of the first day of such Interest Accrual Period and (ii) the product of (A) the
Pass-Through Rate on the Class A-CS1 Certificates and (B) the Notional Balance
of such Class as of such date and the denominator of which is the sum of the
Certificate Balances of each Class included in clause (i)(A) above as of such
date (provided in the case of clauses (i) and (ii), any reductions in
Certificate Balance as a result of distributions or allocations of Realized
Losses to such Class, respectively, occurring in an Interest Accrual Period
shall be deemed to have been made on the first day of such Interest Accrual
Period).
"Westin Casuarina Borrower": As defined in Section 2.01(b).
"Westin Casuarina Co-Lender Agreement": The Co-Lender Agreement, dated as
of March 11, 1998, by and between LaSalle National Bank, as trustee for Series
1997-D5, and Nomura Asset Capital Corporation regarding the administration of
the Westin Casuarina Resort Loan.
"Westin Casuarina Resort Loan": The mortgage loan secured by the property
identified as the Westin Casuarina Resort on the Mortgage Loan Schedule.
"Westin Casuarina Resort Property": As defined in Section 2.01(b).
"Withheld Amounts": As defined in Section 3.27(a).
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans (other
than the Actual/360 Mortgage Loans) and of Advances provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months. All
calculations of interest with respect to the Actual/360 Mortgage Loans and of
Advances provided for herein shall be made as set forth in such Mortgage Loans
with respect to the calculation of the related Mortgage Rate.
(b) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, or the Trustee; provided, however,
that for purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on the
date they are applied in accordance with Section 3.01(b) to reduce the
outstanding principal balance of such Mortgage Loan on which interest accrues.
(c) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing in excess of Monthly Payments shall be
applied to Default Interest and other amounts due on such Mortgage Loan prior to
the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of the definitions of "Minimum Defaulted Monthly Payment" and
"Special Servicing Fee Rate", and Section 3.19, Section 3.12, Section 3.25,
Section 3.30 and Section 4.06(d), references to the most or next most
subordinate Class of Certificates (or Lower-Tier Regular Interests) outstanding
at any time shall mean the most or next most subordinate Class of Certificates
(or Lower-Tier Regular Interests) then outstanding as among the Class A-1A,
Class A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7 and Class B-7H Certificates (and the Classes of Related
Lower-Tier Regular Interests). For such purposes, the Class B-7 and Class B-7H
Certificates (and the Classes of Related Lower-Tier Regular Interests) together
shall be considered to be one Class and the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1 and Class PS-1 Certificates (and the Classes of Related Lower-Tier
Regular Interests) collectively shall be considered to be one Class. For
purposes of this Agreement, each Class of Certificates other than the Class V-1,
Class V-2, Class LR and Class R Certificates shall be deemed to be outstanding
only to the extent its respective Certificate Balance has not been reduced to
zero. For purposes of this Agreement, the Class V-1 Certificates shall be deemed
to be outstanding so long as there are any Notes outstanding, the Class V-2
Certificates shall be deemed outstanding so long as there are any Notes
outstanding that provide for the payment of Excess Interest, the Class B-7H
Certificates and the Class B-7H-L Interest shall be deemed to be outstanding so
long as there are any Notes outstanding that provide for payments of Prepayment
Premiums in connection with voluntary or involuntary prepayments and the Class R
and Class LR Certificates shall be deemed to be outstanding so long as the Trust
Fund has not been terminated pursuant to Section 9.01. For purposes of this
Agreement, the Class A-CS1 and Class PS-1 Certificates shall be deemed to be
outstanding until their respective Notional Balances have been reduced to zero.
<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.
(a) 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, including all rights to
payment in respect thereof, except as set forth below, and any security interest
thereunder (whether in real or personal property and whether tangible or
intangible) in favor of the Depositor, and all Reserve Accounts, Lock-Box
Accounts, Cash Collateral Accounts and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date. In connection with such
transfer and assignment, the Depositor shall make a cash deposit to the
Collection Account in an amount equal to the Cash Deposit. The Depositor,
concurrently with execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase and Sale Agreements and, in, to and
under the Bloomfield Purchase Agreement as assignee of NACC's rights thereunder
to the extent related to any Mortgage Loan. The Servicer, Special Servicer or
the Trustee shall notify the responsible Mortgage Loan Seller and the Depositor
upon such party's becoming aware of any breach of the representations and
warranties contained in this Agreement or the Mortgage Loan Purchase and Sale
Agreement that gives rise to a cure or repurchase obligation; provided, that the
failure of the Servicer, 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 Mortgage Loan Sellers and the
Originators.
In connection with such transfer and assignment, the Depositor does hereby
deliver to, and deposit with, the Custodian (on behalf of the Trustee), with
copies to the Servicer, the Sub-Servicer and the Special Servicer, the following
documents or instruments with respect to each Mortgage Loan so assigned
(provided, however, the documents specified in item (ix) shall be delivered only
to the Sub-Servicer and the Servicer and provided further that with respect to
the Westin Casuarina Resort Loan, only the document specified in item (i) shall
be an original thereof, and item (iv) shall not be required):
(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", or in blank, which
Note and all endorsements thereon shall, unless the Mortgage Loan
was originated by the Mortgage Loan Seller (as indicated on the
Mortgage Loan Schedule), show a complete chain of endorsement from
the Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof showing the
Originator as mortgagee or, if any such original Mortgage has not
been returned from the applicable public recording office, a copy
thereof certified to be a true and complete copy of the original
thereof submitted for recording;
(iii) an executed Assignment of Mortgage in suitable form for
recordation in the jurisdiction in which the Mortgaged Property is
located to "LaSalle National Bank, as Trustee, without recourse";
(iv) if the related security agreement is separate from the Mortgage,
the original executed version or counterpart thereof of such
security agreement and the assignment thereof to Trustee;
(v) a copy of the UCC-1 financing statement, together with an original
executed UCC-2 or UCC-3 financing statement, in a form suitable
for filing, disclosing the assignment to the Trustee of the
security interest in the personal property (if any) constituting
security for repayment of the Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof relating
to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the original pro
forma title insurance policy), together with any endorsements
thereto;
(viii) if any related Assignment of Leases, Rents and Profits is separate
from the Mortgage, the original executed version or counterpart
thereof, together with an executed reassignment of such instrument
to the Trustee (a "Reassignment of Assignment of Leases, Rents and
Profits") in suitable form for recordation in the jurisdiction in
which the Mortgaged Property is located (which reassignment,
however, may be included in the Assignment of Mortgage and need
not be a separate instrument);
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage
Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xi) a copy of the related ground lease, as amended, for the Mortgaged
Property, if any;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of
contracts and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Agreement is
separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1 financing
statements, if any, submitted for filing with respect to the
Mortgage Loan Seller's security interest in the Reserve Accounts,
Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-3 financing statements assigning such
security interest to the Trustee on behalf of the
Certificateholders);
(xiv) any and all amendments, modifications and supplements to, and
waivers related to, any of the foregoing;
(xv) with respect to the Westin Casuarina Resort Loan, the Westin
Casuarina Co-Lender Agreement;
(xvi) with respect to the Credit Lease Loans, the original of any Lease
Enhancement Policy, Residual Value Policy, the related credit
tenant lease and tenant estoppels, and any guaranty of the credit
lease; and
(xvii) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Servicer shall, to the
extent possession of recorded copies of each Mortgage and the documents
described in Sections 2.01(a)(iv), (v), (viii), (xii), (xiii) and (xiv) have
been delivered to it, at the expense of the Depositor, (1) prepare and record
(a) each Assignment of Mortgage referred to in Section 2.01(a)(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(a)(viii) (if not otherwise
included in the related Assignment of Mortgage) which has not yet been submitted
for recordation; and (2) prepare and file each UCC-2 or UCC-3 financing
statement referred to in Section 2.01(a)(v) or (xiii) which has not yet been
submitted for filing. The Servicer shall upon delivery promptly prepare and
submit (and in no event later than 30 Business Days following the receipt of the
related documents in the case of clause 1(a) above and 60 days following the
receipt of the applicable documents 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(a)(v) to be filed in the applicable public recording office and
upon filing will promptly deliver to the Custodian the related UCC-1, with
evidence of filing thereon. The Depositor shall reimburse the Servicer for all
out-of-pocket expenses incurred and filing fees paid by the Servicer in
connection with its obligations under this paragraph. Copies of recorded or
filed Assignments, Reassignments, UCC-1's and UCC-3's shall be delivered to the
Trustee by the Depositor or Servicer, as applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
(b) The Mortgage Loan known as the Westin Casuarina Resort Loan is secured
by the property known as the Westin Casuarina Resort (the "Westin Casuarina
Resort Property"). The Westin Casuarina Resort Property also serves as security
for another loan made by NACC to Galleon Beach Resort, Ltd. (the "Westin
Casuarina Borrower") on August 7, 1997 (the "Other Westin Casuarina Loan"),
which had an original principal balance of $50,000,000. The Other Westin
Casuarina Loan is included in the trust fund created in connection with the
issuance of Asset Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1997-D5 ("Series 1997-D5"). The Westin Casuarina Resort
Loan and the Other Westin Casuarina Loan are pari passu loans, entitled to
payments made by the Westin Casuarina Borrower and other amounts received in
respect of the Westin Casuarina Resort Property pro rata on the basis of amounts
owing under each such loan.
In connection with the origination of the Westin Casuarina Resort Loan, the
trustee of Series 1997-D5 (which is LaSalle National Bank) and NACC entered into
the Westin Casuarina Co-Lender Agreement. Under the terms of the Westin
Casuarina Co-Lender Agreement, the servicer of Series 1997-D5 (which is
presently the same entity that is serving as the initial Servicer) will service
both the Westin Casuarina Resort Loan and the Other Westin Casuarina Resort Loan
and the special servicer of Series 1997-D5 (which is initially AMRESCO
Management, Inc.) will, to the extent necessary, special service both the Westin
Casuarina Resort Loan and the Other Westin Casuarina Resort Loan, in each case
under the terms of the pooling and servicing agreement related to Series
1997-D5. The Servicer (although initially the same entity acting as servicer of
1997-D5) will therefore not directly service the Westin Casuarina Resort Loan
(except that the Servicer will be required to advance delinquent payments) and
the Special Servicer will not have the ability to direct any foreclosure or
workout of the Westin Casuarina Resort Loan and the Directing Holder will have
no rights to direct actions of the Special Servicer with respect to the Westin
Casuarina Resort Loan.
Each of the Mortgage Loans known as the Park LaBrea Loan, the Springfield
Mall Loan and the Atlanta Marriott Marquis Loan (the "Special Mortgage Loans")
are secured by Mortgaged Properties which also serve as security for other loans
made by NACC (the "Other Mortgage Loans"). The Other Mortgage Loans will be
included in trust funds created in connection with issuance of separate series
of commercial mortgage pass-through certificates. Each Special Mortgage Loan is
a pari passu loan, and each is entitled to payments made by the respective
borrower and other amounts received in respect of the related Mortgaged Property
pro rata on the basis of amounts owing under each such loan.
Pursuant to the terms of the Co-Lender Agreements, the Servicer will
service both the Special Mortgage Loans and the Other Mortgage Loans, and the
Special Servicer will, to the extent necessary, specially service both the
Special Mortgage Loans and the Other Mortgage Loans, in each case, in accordance
with the terms hereof.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded document
described in Section 2.01 on the Closing Date, the Depositor shall use its best
efforts, promptly upon receipt thereof and in any case not later than 45 days
from the Closing Date, to deliver such original or certified recorded documents
to the Custodian (unless the Depositor is delayed in making such delivery by
reason of the fact that such documents shall not have been returned by the
appropriate recording office in which case it shall notify the Custodian and the
Trustee in writing of such delay and shall deliver such documents to the
Custodian promptly upon the Depositor's receipt thereof). By its execution and
delivery of this Agreement, the Trustee acknowledges the assignment to it of the
Mortgage Loans in good faith without notice of adverse claims and declares that
the Custodian holds and will hold such documents and all others delivered to it
constituting the Mortgage File (to the extent the documents constituting the
Mortgage File are actually delivered to the Custodian) for any Mortgage Loan
assigned to the Trustee hereunder in trust, upon the conditions herein set
forth, for the use and benefit of all present and future Certificateholders.
With the exception of any Notes listed by the Trustee on an exception report and
delivered to the Depositor on the Closing Date, the Trustee hereby acknowledges
the receipt of the Notes or, if applicable, a lost note affidavit. The Trustee
agrees to review each Mortgage File within 90 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(a) 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(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto),
(viii), (x) through (xiv), (xvi) and (xvii), as identified to it in writing by
the Depositor) and any original recorded documents referred to in the first
sentence of this Section included in the delivery of a Mortgage File have been
received, have been executed, appear to be what they purport to be, purport to
be recorded or filed (as applicable) and have not been torn, mutilated or
otherwise defaced, and that such documents relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. In so doing, the Trustee may rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and the Mortgage
Loan Seller by providing a written report, setting forth for each affected
Mortgage Loan, with particularity, the nature of the defective or missing
document. The Depositor shall, or shall cause the applicable Mortgage Loan
Seller to, deliver an executed, recorded or undamaged document, as applicable,
or, if the failure to deliver such document in such form has a material adverse
effect on the security provided by the related Mortgaged Property, the Depositor
shall, or shall cause the responsible Mortgage Loan Sellers 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, Warranties and Covenants 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 reduction, withdrawal or qualifying 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:
(a) the Note and the Mortgage were not subject to an assignment or
pledge (except as described in Section 2.01(b) with respect to the
Westin Casuarina Resort Loan), and (b) 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) Except as described in Section 2.01(b) with respect to the Westin
Casuarina Resort Loan, 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, and the Westin Casuarina Co-Lender
Agreement and assignment thereof to the Trustee hereunder,
constitutes the legal, valid and binding obligation of the parties
thereto;
(iv) No claims have been made by the Depositor under the lender's title
insurance policy, and the Depositor has not done, by act or
omission, anything which would impair the coverage of such
lender's title insurance policy;
(v) All of the representations and warranties of the Mortgage Loan
Sellers contained in the Mortgage Loan Purchase and Sale
Agreements 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 responsible
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 Mortgage Loan
Sellers in the Mortgage Loan Purchase and Sale Agreements 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 appropriate Mortgage Loan Seller and such Mortgage
Loan Seller shall, to the extent such Mortgage Loan Seller is obligated to cure
or repurchase the related Mortgage Loan under the terms of the related 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 related 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 as determined by the Servicer or the Special
Servicer, as applicable, but not within such 90 day period and the appropriate
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such breach within such 90 day period (other than a breach that is also a breach
of Section 2.03(b)(vi) or 2.03(d)), the appropriate Mortgage Loan Seller shall
have an additional 90 days to complete such cure; provided, further, that with
respect to such additional 90 day period the appropriate Mortgage Loan Seller
shall have delivered an officer's certificate to the Trustee and the Servicer
setting forth the reason such breach is not capable of being cured within the
initial 90 day period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such breach will be cured within the additional 90 day period;
and, provided, further, the Repurchase Price shall include interest on any
Advances made in respect of the related Mortgage Loan. Any out-of-pocket
expenses incurred by the Servicer pursuant to this Section 2.03(e), and which
have not been previously reimbursed, and which in the good faith business
judgment of the Servicer would not be ultimately recoverable under clause (iv)
of the definition of Repurchase Price shall constitute a Property Advance
hereunder.
(f) Upon receipt by the Servicer from the Depositor or appropriate Mortgage
Loan Seller of the Repurchase Price for the repurchased Mortgage Loan, the
Servicer shall deposit such amount in the Collection Account, and the Trustee,
pursuant to Section 3.11, shall, upon receipt of a certificate of a Servicing
Officer certifying as to the receipt by the Servicer of the Repurchase Price and
the deposit of the Repurchase Price into the Collection Account pursuant to this
Section 2.03(f), release or cause to be released to the Depositor or the
appropriate Mortgage Loan Seller the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as shall be prepared by the Servicer to
vest in the Depositor or the appropriate Mortgage Loan Seller any Mortgage Loan
released pursuant hereto, and any rights of the Depositor in, to and under the
Mortgage Loan Purchase and Sale Agreement as it related to such Mortgage Loan
that was initially transferred to the Trust Fund under Section 2.01, and if
applicable any rights of NACC or Depositor in, to and under the related
Bloomfield 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 any Mortgage Loan Seller incurs any expense in
connection with curing a breach of a representation or warranty pursuant to
Section 2.03(e) which also constitutes a default under the related Mortgage
Loan, such Mortgage Loan Seller shall have a right, subrogated to that of the
Trustee, as successor to the mortgagee, to recover the amount of such expenses
from the related Borrower. The Servicer shall use reasonable efforts in
recovering, or assisting such Mortgage Loan Seller in recovering, from the
related Borrower the amount of any such expenses. Any out-of-pocket expenses
incurred by the Servicer pursuant to this Section 2.03(g), and which have not
been previously reimbursed, and which in the good faith business judgment of the
Servicer would not be ultimately recoverable under clause (iv) of the definition
of Repurchase Price shall constitute a Property Advance hereunder.
(h) In the event that any litigation is commenced which alleges facts
which, in the judgment of the Depositor, could constitute a breach of any of the
Depositor's representations and warranties relating to the Mortgage Loans, the
Depositor hereby reserves the right to conduct the defense of such litigation at
its expense.
(i) If for any reason the Mortgage Loan Sellers or the Depositor fails to
fulfill its obligations under this Section 2.03 with respect to any Mortgage
Loan, the Servicer or Special Servicer shall use reasonable efforts in enforcing
any obligation of the Originator to cure or repurchase such Mortgage Loan under
the terms of the related Originator Purchase Agreement. Any out-of-pocket
expenses incurred by the Servicer or Special Servicer, as applicable, pursuant
to this Section 2.03(i), and which have not been previously reimbursed, and
which in the good faith business judgment of the Servicer would not be
ultimately recoverable under clause (iv) of the definition of Repurchase Price
shall constitute a Property Advance hereunder.
(j) The Depositor additionally represents, warrants and covenants that:
(i) The Depositor will at all times maintain its valid corporate
existence in good standing under the laws of the state of its
incorporation. The Depositor has otherwise complied and will
comply in all respects with the laws of the state of its
incorporation, and with all other laws, federal, state, or
otherwise, insofar as they are related to its separate corporate
existence, and it will observe all requisite corporate
formalities.
(ii) Although all directors and officers of the Depositor, except any
director who is Independent, are directors, officers, or employees
of NACC and/or Nomura Securities International, Inc. ("NSI"), such
persons have not directly received, and will not directly receive,
any remuneration from the Depositor for serving as directors or
officers of the Depositor. The Depositor is charged and pays a
fair estimate, adjusted every six months, of payroll and related
expenses for work and services performed by the directors,
officers, and employees of NACC or NSI for services performed as
directors or officers of the Depositor. The officers and directors
of the Depositor, when acting in such capacity, act in the best
interests of the Depositor, consistent with their fiduciary duties
as directors and officers of such corporation. The Depositor is
not obligated to pay or distribute to NACC or any of its
Affiliates, by dividend or otherwise, any portion of any of its
profits or its other assets. The Depositor's profits, if any, may,
at the discretion of the Depositor's Board of Directors and
subject to applicable law, be transferred by dividend to the
Depositor's shareholder(s), which is presently NACC.
(iii) The Depositor maintains its business in separately allocated and
identifiable office space within the offices of its Affiliates in
New York City. The Depositor's presence at such offices is noted
in the building directory and on other signs. As set forth above
in connection with payroll expenses, the Depositor is charged and
pays rent in an amount corresponding to the portion of the office
space allocated to the Depositor.
(iv) The Depositor has a telephone number different from any telephone
numbers of NACC and the Financing Trust and NSI or any of their
Affiliates. The Depositor uses its own stationery that indicates
its separate telephone number and identifies it as a separate
corporate entity.
(v) The Depositor shall not fail to correct any known misunderstanding
regarding the separate identity of the Depositor, or purport to
operate as an integrated, single economic unit with any of its
Affiliates in dealing with any unaffiliated entity. Neither the
Mortgage Loan Sellers nor NSI finance the Depositor's operations
or guarantees the Depositor's obligations, and the Depositor does
not finance the operations or guarantee the obligations of the
Mortgage Loan Sellers or NSI; provided, however, that NACC has
made capital contributions to the Depositor, and may make
additional capital contributions from time to time in connection
with the expansion of the Depositor's business or to enable the
Depositor to invest in privately-offered Certificates. However,
NACC does not pay or subsidize any of the Depositor's normal
operating expenses. The Depositor will pay from its own funds its
operating expenses and liabilities, including legal fees and
expenses, or will reimburse the Mortgage Loan Sellers or NSI for
any such expenses or liabilities paid by the Mortgage Loan Sellers
or NSI on the Depositor's behalf. To facilitate the registration
process, NACC and/or NSI has advanced and may advance certain
expenses of the Depositor associated with the registration
process. The Depositor has repaid or will repay to NACC and/or NSI
these expenses on an allocable basis out of the proceeds of
mortgage pass-through transactions. Neither the Mortgage Loan
Sellers nor NSI have funded or will fund the Depositor's operating
expenses. The assets or creditworthiness of the Mortgage Loan
Sellers, NSI or any of their Affiliates are not held out by the
Depositor as being available for the payment of the Depositor's
liabilities or obligations, and the assets or creditworthiness of
the Depositor are not held out by the Depositor as being available
for the payment of the liabilities of the Mortgage Loan Sellers,
NSI or any of their Affiliates other than the Depositor. The
assets or creditworthiness of the Depositor are not held out by
the Mortgage Loan Sellers or NSI, to the knowledge of the
Depositor, and the Depositor will not permit that its assets or
creditworthiness will be held out by the Mortgage Loan Sellers or
NSI, as being available for the payment of the liabilities or
obligations of the Mortgage Loan Sellers, NSI or any of their
Affiliates. The assets or creditworthiness of the Mortgage Loan
Sellers, NSI or any of their Affiliates are not held out by the
Mortgage Loan Sellers or NSI, to the knowledge of the Depositor,
and the Depositor will not permit that the assets or
creditworthiness of the Mortgage Loan Sellers or NSI will be held
out by the Mortgage Loan Sellers or NSI, as being available for
the payment of the liabilities of the Depositor. The Depositor's
assets are now, and are expected in the future to be, sufficient
to pay the Depositor's ongoing expenses as they are incurred and
to discharge all of the Depositor's liabilities in the event that
the business of the Depositor is required to be liquidated.
(vi) The separate corporate existence of the Depositor is not used by
either the Depositor, or, to the knowledge of the Depositor, by
the Mortgage Loan Sellers or NSI, and the Depositor will not
permit that its separate corporate existence will be used by the
Mortgage Loan Sellers or NSI, to abuse creditors or to perpetrate
a fraud, injury, or injustice on creditors.
(vii) The Depositor's existence is not dependent on it being a
subsidiary of NACC or an Affiliate of NSI and it is expected that
the Depositor would be able to maintain its business and affairs
even if it were not a subsidiary of NACC or an Affiliate of NSI.
To the knowledge of the Depositor, NACC's existence is not
dependent on the Depositor being its subsidiary and it is expected
that NACC would be able to maintain its business and affairs even
if the Depositor were not its subsidiary. To the knowledge of the
Depositor, the Mortgage Loan Sellers' existence is not dependent
on the Depositor being their Affiliate and it is expected that NSI
would be able to maintain its business and affairs even if the
Depositor were not its Affiliate. The Depositor conducts its
business separate and apart from the business conducted by any
other person or entity.
(viii) The Depositor maintains corporate records distinct and separately
identifiable from the corporate records of the Mortgage Loan
Sellers, NSI and any other person or entity. The Depositor
prepares monthly financial records distinct and separately
identifiable from the financial records of the Mortgage Loan
Sellers, NSI or any of their Affiliates. These statements and
reports are prepared and maintained in accordance with generally
accepted accounting principles, susceptible to audit and audited,
at least annually, in connection with the audit of the Depositor
and its Affiliates on a consolidated basis by independent public
accountants in accordance with generally accepted auditing
standards. Such consolidated financial statements will henceforth
indicate that the assets of the Depositor are not available to
satisfy the creditors of any entity other than the Depositor. The
Depositor keeps its funds separate and apart from the funds of the
Mortgage Loan Sellers, NSI and any of their Affiliates, and its
other assets are separately identifiable and distinguishable from
the assets of the Mortgage Loan Sellers, NSI and any of their
Affiliates.
(ix) The Depositor acts solely in its own corporate name and solely
through its duly authorized officers or agents. The Depositor
complies with the provisions of its Certificate of Incorporation
and its By-Laws and complies in all material respects, in
connection with its separate existence, with the laws of the state
in which it is incorporated. In addition, the sole shareholder and
the Board of Directors of the Depositor hold all such meetings or
execute consents necessary to authorize corporate action by the
Depositor, and the Depositor maintains appropriate minutes of such
meetings or records of its written consents. The Depositor
observes all requisite corporate formalities.
(x) All transactions between the Mortgage Loan Sellers or NSI (or any
of their Affiliates), on the one hand, and the Depositor, on the
other, are, and will be, duly authorized and documented, and
recorded accurately in the appropriate books and records of the
Depositor, and to the knowledge of the Depositor, in the
appropriate books and records of the Mortgage Loan Sellers or NSI,
if the Mortgage Loan Sellers or NSI is a party to such
transaction. All such transactions are fair to each party,
constitute exchanges for fair consideration and for reasonably
equivalent value, and are made in good faith and without any
actual intent to hinder, delay, or defraud creditors. The
Depositor will not take any action, and will not engage in
transactions with the Mortgage Loan Sellers, NSI or any of their
Affiliates unless the respective Boards of Directors or officers,
as appropriate, of the Depositor and the Mortgage Loan Sellers or
NSI, if the Mortgage Loan Sellers or NSI, respectively, is a party
to such transaction, determine in a reasonable fashion that such
actions or transactions are in their respective companies' best
interests.
(xi) The Depositor intends the transfer of the Mortgage Loans from the
Mortgage Loan Sellers to the Depositor pursuant to the Mortgage
Loan Purchase and Sale Agreements to be a sale of the Mortgage
Loans. The Depositor intends the transfer of the Mortgage Loans
from the Depositor to the Trustee pursuant to this Agreement, and
the transfer of Certificates to NSI (all Certificates so
transferred, the "NSI Certificates"), to be sales from the
Depositor to the Trustee (the "Depositor/Trustee Transfer") and
from the Depositor to NSI (the "Depositor/NSI Transfer"),
respectively. The Depositor will treat the transfer of the
Mortgage Loans, the Depositor/Trustee Transfer and the
Depositor/NSI Transfer as sales for accounting and tax purposes.
The purchase prices for the Mortgage Loans and the NSI
Certificates reflect the good faith determinations of the
Depositor of the fair market value of the Mortgage Loans and the
NSI Certificates, respectively, and are equal to the prices that
the Depositor believes would be paid in sales of the Mortgage
Loans or the NSI Certificates between non-affiliated entities. No
provision exists whereby such consideration may be modified
subsequent to closing, and the Depositor has no obligation to
repay such consideration, or interest thereon, to the Trustee or
NSI, as applicable. The Depositor will receive the consideration
for the NSI Certificates.
(xii) The Depositor irrevocably transfers and relinquishes all rights
with respect to the Mortgage Loans and, specifically, has no right
to sell, pledge or otherwise dispose of the Mortgage Loans.
Subject to the terms of this Agreement, the Trustee is free to
deal with the Mortgage Loans as trustee of trust property on
behalf of the Certificateholders. The Depositor transfers the
Mortgage Loans without recourse and has no obligation to deliver
other property to the Trustee either in substitution for or in
addition to the Mortgage Loans in the event of a credit loss or
decline in value of the Mortgage Loans. The Depositor has no right
to transfer the Mortgage Loans back to the Mortgage Loan Sellers.
(xiii) The Depositor has not transferred the Mortgage Loans in
contemplation of insolvency or with a design to prefer one or more
creditors to the exclusion in whole or in part of others or with
an actual intent to hinder, delay or defraud any of its creditors.
(xiv) The assets of the Depositor are now, and are expected in the
future to be, sufficient to pay the ongoing business expenses of
the Depositor as they are incurred and to discharge all of its
liabilities in the event that the business of the Depositor is
required to be liquidated.
(xv) The property remaining in the hands of the Depositor after giving
effect to the Transfers is not an unreasonably small amount of
capital for the business in which the Depositor is engaged.
SECTION 2.04. Representations, Warranties and Covenants of the Servicer,
Special Servicer and Trustee.
(a) The Servicer, as 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 limited partnership, duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has all material licenses necessary to carry on its
business as now being conducted or is in compliance with the laws
of each state (within the United States of America) 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;
to the best knowledge of the Servicer, it is not required to
become licensed for such purposes with respect to the Cayman
Islands, but the Servicer shall endeavor to become so licensed if
so required;
(ii) The Servicer has the full partnership 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 certificate of
limited partnership or partnership agreement, 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 partnership 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;
(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; and
(vii) any sub-servicing agreement in effect on or after the Closing Date
between the Sub-Servicer and the Servicer provides or will
provide, among other things, that the Servicer may at its sole
option, terminate any rights the Sub-Servicer may have thereunder
(without cost or obligation to the Trust Fund or the Servicer)
with respect to any or all of the Mortgage Loans if any of the
Rating Agencies (i) reduces the rating assigned to one or more
Classes of Certificates as a result of the sub-servicing of the
Mortgage Loans by the Sub-Servicer or (ii) advise the Servicer or
the Trustee that it will cause a qualification, downgrade or
withdrawal for such rating due to continued sub-servicing by the
Sub-Servicer.
(b) The Special Servicer, as Special Servicer, hereby represents, warrants
and covenants that as of the Closing Date or as of such date specifically
provided herein:
(i) The Special Servicer is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State
of Maryland and has all licenses necessary to carry on its
business as now being conducted or will be in compliance with the
laws of each state (within the United States of America) 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 Special Servicer has the full power, authority and legal right
to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the
Special Servicer and its performance and compliance with the terms
of this Agreement will not violate the Special Servicer's
partnership agreement and certificate of limited partnership or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material contract, agreement or other instrument to
which the Special Servicer is a party or which may be applicable
to the Special Servicer or any of its assets;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Special Servicer and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of the Special Servicer,
enforceable against it in accordance with the terms of this
Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors'
rights generally, or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law), and all requisite corporate action has been
taken by the Special Servicer to make this Agreement and all
agreements contemplated hereby valid and binding upon the Special
Servicer in accordance with their terms;
(iv) The Special Servicer is not in violation of, and the execution and
delivery of this Agreement by the Special Servicer and its
performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of
any court binding on the Special Servicer or any order or
regulation of any federal, state, municipal or governmental agency
having jurisdiction, or result in the creation or imposition of
any lien, charge or encumbrance which, in any such event, would
have consequences that would materially and adversely affect the
condition (financial or otherwise) or operation of the Special
Servicer or its properties or impair the ability of the Trust Fund
to realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Special Servicer which, either in any one
instance or in the aggregate, would result in any material adverse
change in the business, operations, financial condition,
properties or assets of the Special Servicer, or in any material
impairment of the right, or would, if adversely determined,
materially impair the ability of the Special Servicer, to carry on
its business substantially as now conducted, or in any material
liability on the part of the Special Servicer, or which would draw
into question the validity of this Agreement or the Mortgage Loans
or of any action taken or to be taken in connection with the
obligations of the Special Servicer contemplated herein, or which
would be likely to impair materially the ability of the Special
Servicer to perform under the terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Special Servicer of or compliance by the Special Servicer with
this Agreement, or if required, such approval has been obtained
prior to the Cut-off Date.
(c) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Depositor and
the Servicer or Special Servicer, as the case may be. Upon discovery by the
Depositor, the Servicer, Special Servicer or a Responsible Officer of the
Trustee (or upon written notice thereof from any Certificateholder) of a breach
of any of the representations and warranties set forth in this Section which
materially and adversely affects the interests of the Certificateholders, the
Servicer, 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 and the Mortgage Loan Sellers.
(d) The Trustee hereby represents and warrants that as of the Closing Date:
(i) The Trustee is a nationally chartered bank duly organized, validly
existing, and in good standing under the laws of the United States
and has full power, authority and legal right to own its
properties and conduct its business as presently conducted and to
execute, deliver and perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered by
the Trustee and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid
and binding instrument enforceable against the Trustee in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and
by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the transactions
herein contemplated to be performed by the Trustee, nor compliance
by the Trustee with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the
provisions of any applicable law (subject to the appointment in
accordance with such applicable law of any co-trustee or separate
trustee required pursuant to this Agreement), governmental rule,
regulation, judgment, decree or order binding on the Trustee or
its properties or the organizational documents of the Trustee or
the terms of any material agreement, instrument or indenture to
which the Trustee is a party or by which it is bound.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery of the Mortgage Files to the Custodian (to the extent the documents
constituting the Mortgage Files are actually delivered to the Custodian),
subject to the provisions of Section 2.01 and Section 2.02 and, concurrently
with such delivery, (i) acknowledges the issuance of and hereby declares that it
holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the
Holders of the Regular Certificates and the Class R Certificates and (ii) has
caused to be executed and caused to be authenticated and delivered to or upon
the order of the Depositor, or as directed by the terms of this Agreement, Class
A-1A, Class A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and Class LR
Certificates in authorized denominations, in each case registered in the names
set forth in such order or so directed in this Agreement and duly authenticated
by the Authenticating Agent, which Certificates (described in the preceding
clause (ii)) and Lower-Tier Regular Interests evidence ownership of the entire
Trust Fund.
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class A-1A-L, Class A-1B-L, Class A-1C-L, Class A-2-L, Class A-3-L,
Class A-4-L, Class A-5-L, Class B-1-L, Class B-2-L, Class B-3-L, Class B-4-L,
Class B-5-L, Class B-6-L, Class B-7-L and Class B-7H-L Interests are hereby
designated as "regular interests" in the Lower-Tier REMIC within the meaning of
Section 860G(a)(1) of the Code, and the Class LR Certificates are hereby
designated as the sole Class of "residual interests" in the Lower-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Class A-1A, Class
A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7 and Class B-7H Certificates are hereby designated as "regular
interests" in the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of
the Code and the Class R Certificates are hereby designated as the sole Class of
"residual interests" in the Upper-Tier REMIC within the meaning of Section
860G(a)(2) of the Code. The Class A-CS1 Certificates represent a "specified
portion" of the interest payments on the Class A-1A-L Interest within the
meaning of Treasury Regulations Section 1.860G-1(a)(2). The Class PS-1
Certificates represent a "specified portion" of the interest payments on the
Class A-1A1-L, the Class A-1A2-L, the Class A-1B-L, the Class A-1C-L, Class
A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class B-1-L, Class B-2-L, Class
B-3-L, Class B-4-L, Class B-5-L, Class B-6-L, Class B-7-L and Class B-7H-L
Interests, within the meaning of Treasury Regulations Section 1.860G-1(a)(2).
The Closing Date is hereby designated as the "Startup Day" of the Lower-Tier
REMIC and the Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date" of the Lower-Tier Regular Interests
and the Regular Certificates for purposes of Section 860G(a)(1) of the Code is
the Scheduled Final Distribution Date. The initial Certificate Balance of each
Class of the Lower-Tier Regular Interests is equal to the Certificate Balance of
the Related Certificates. The interest rate for each Class of Lower-Tier Regular
Interests is a per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate.
(b) The Class V-1 Certificates represent pro rata undivided beneficial
interests in the Default Interest subject to the liability of the Trust Fund to
pay Advance Interest Amounts. The Class V-2 Certificates represent beneficial
pro rata undivided interests in the Excess Interest. The Class V-1 and Class V-2
Certificates do not represent regular or residual interests in either the
Upper-Tier REMIC or the Lower-Tier REMIC.
(c) None of the Depositor, the Trustee, the Servicer, the Fiscal Agent or
the Special Servicer shall enter into any arrangement by which the Trust Fund
will receive a fee or other compensation for services other than as specifically
contemplated herein.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the Mortgage
Loans.
(a) The Servicer and the Special Servicer, each as an independent
contractor servicer, shall service and administer the Mortgage Loans on behalf
of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with any and all applicable laws, the terms of this Agreement, the
respective Mortgage Loan, and to the extent consistent with the foregoing, 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 3.30, 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. The Servicer and
Special Servicer shall provide to the Borrowers any reports required to be
provided to them pursuant to the Mortgage Loans. 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, (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, 3.28 or 3.30 (or the definition of Minimum Defaulted Monthly Payment), and
(iii) such agreement shall be consistent with the Servicing Standard (to the
extent consistent with this Agreement). 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, other than the subservicing agreement with the
Sub-Servicer, 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. Notwithstanding the
foregoing, any sub-servicing agreement in effect on or after the Closing Date
between the Sub-Servicer and the Servicer provides or will provide, among other
things, that the Servicer may at its sole option, terminate any rights the
Sub-Servicer may have thereunder (without cost or obligation to the Trust Fund
or the Servicer) with respect to any or all of the Mortgage Loans if any of the
Rating Agencies (i) reduces the rating assigned to one or more Classes of
Certificates as a result of the sub-servicing of the Mortgage Loans by the
Sub-Servicer or (ii) advise the Servicer or the Trustee that it will cause a
qualification, downgrade or withdrawal for such rating due to continued
sub-servicing by the Sub-Servicer.
Any sub-servicing agreement entered into by the Servicer, including any
sub-servicing agreement with the Sub-Servicer, shall provide that, with respect
to any Mortgage Loan in which an Affiliate of the sub-servicer holds any
subordinate debt, preferred equity investment, or mezzanine debt of a related
Borrower or its Affiliate, such sub-servicer may sub-service such Mortgage Loan;
provided, however, that the Servicer shall make all decisions with respect to
the administration of any such Mortgage Loan including, without limitation,
lease approvals, calculation of and releases from reserves, modifications,
waivers and amendments of the terms thereof, releases of collateral and
transfers to special servicing.
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 or Servicer, as applicable, 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. With
respect to each Specially Serviced Mortgage Loan, the Special Servicer shall use
its reasonable efforts to collect income statements and rent rolls from
Borrowers as required by the Loan Documents and the terms hereof and shall
provide copies thereof to the Servicer as provided herein. The Servicer shall
provide at least six months' notice to the Special Servicer and Borrowers of
Balloon Payments coming due. Consistent with the foregoing, the Servicer or
Special Servicer, as applicable, may in its discretion waive any late payment
charge (but not any Default Interest) in connection with any delinquent Monthly
Payment or Balloon Payment with respect to any Mortgage Loan. In addition, the
Servicer shall be entitled to take such actions with respect to the collection
of payments on the Mortgage Loans as are permitted or required under Section
3.28 hereof.
(b) In the event that the Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments and other similar
items that are or may become a lien on the related Mortgaged Property and the
status of insurance premiums payable with respect thereto. Except with respect
to the Westin Casuarina Resort Loan, 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, (or with respect to Mortgage Loans with
no Escrow Accounts for such purpose, upon determining (using efforts consistent
with the Servicing Standard) that the Borrower has not made such payment) 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 Services, L.P., as Servicer, in
trust for LaSalle National Bank, as Trustee in trust for Holders of Nomura Asset
Securities Corporation, Commercial Mortgage Pass-Through Certificates, Series
1998-D6, 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; Distribution Account; Upper-Tier
Distribution Account; Default Interest Distribution
Account; and Excess Interest Distribution Account.
(a) The Servicer shall establish and maintain the Collection Account in the
Trustee's name, for the benefit of the Certificateholders and the Trustee as the
Holder of the Lower-Tier Regular Interests. The Collection Account shall be
established and maintained as an Eligible Account. The Servicer shall deposit or
cause to be deposited in the Collection Account within one Business Day
following receipt the following payments and collections received or made by it
on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments and all Prepayment
Premiums;
(iii) any amounts required to be deposited pursuant to Section 3.07(b),
in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b) and all Net Insurance Proceeds and Net Liquidation
Proceeds;
(v) any amounts received from Borrowers which represent recoveries of
Property Protection Expenses, to the extent not permitted to be
retained by the Servicer or Special Servicer as provided herein;
(vi) any other amounts required by the provisions of this Agreement to
be deposited into the Collection Account by the Servicer or
Special Servicer, including, without limitation, proceeds of any
repurchase of a Mortgage Loan pursuant to Sections 2.03(d) and (e)
hereof; and
(vii) any Servicer Prepayment Interest Shortfalls.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (subject to
Section 3.12 hereof), Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Servicer
and, to the extent permitted by applicable law, the Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans. In the event that the Servicer deposits in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) The Trustee shall establish and maintain the Distribution Account in
the name of the Trustee, in trust for the benefit of the Certificateholders and
the Trustee as the Holder of the Lower-Tier Regular Interests. The Distribution
Account shall be established and maintained as an Eligible Account.
(c) The Trustee shall establish and maintain the Upper-Tier Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall withdraw from the Distribution Account and deposit in the
Upper-Tier Distribution Account on or before such date the amount of Available
Funds (including P&I Advances) and Prepayment Premiums to be distributed in
respect of the Lower-Tier Regular Interests pursuant to Section 4.01(a)(i) and
Section 4.01(a)(ii) hereof on such date. Notwithstanding anything herein to the
contrary, the Upper-Tier Distribution Account may be maintained as a subaccount
of the Distribution Account; provided, that accounts shall be maintained in a
manner sufficient to identify the deposits thereto and withdrawals therefrom.
(d) 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).
(e) Prior to the Servicer Remittance Date relating to any Collection
Period, in which Excess Interest is received, the Trustee shall establish and
maintain the Excess Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Holders of the Class V-2 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to the applicable
Distribution Date, the Servicer shall remit to the Trustee for deposit in the
Excess Interest Distribution Account an amount equal to the Excess Interest
received during the applicable Collection Period. Following the distribution of
Excess Interest to Certificateholders on the first Distribution Date after which
there are no longer any Mortgage Loans outstanding which pursuant to their terms
could pay Excess Interest, the Trustee shall terminate the Excess Interest
Distribution Account.
(f) Funds in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Default Interest Distribution Account and
the Excess Interest Distribution Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.07. The Servicer
shall give written notice to the Trustee of the location and account number of
the Collection Account and shall notify the Trustee in writing prior to any
subsequent change thereof.
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Servicer may make withdrawals from the Collection Account only as
described below (the order set forth below not constituting an order of priority
for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account,
the Default Interest Distribution Account, the Interest Reserve
Account, and the Excess Interest Distribution Account, the amounts
required to be deposited in the Distribution Account, the Default
Interest Distribution Account, the Interest Reserve Account, and
the Excess Interest Distribution Account pursuant to Sections
4.06, 3.05(c), 3.05(d), 3.27(a) and 3.05(e);
(ii) to pay or reimburse the Trustee, the Fiscal Agent, the Servicer
and the Special Servicer for Advances (provided, that the Trustee
and 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 with respect to which such Advance was made, (y) with
respect to P&I Advances, any Subordinate Class Advance Amounts
with respect to the related Distribution Date as provided in
Section 4.06(d), or (z) any other amounts in the Collection
Account in the event that such Advances or any Advance Interest
Amount have been deemed to be Nonrecoverable Advances or are not
reimbursed from recoveries in respect of the related Mortgage Loan
or REO Property after a Final Recovery Determination;
(iii) (A) to pay to the Servicer, the Trustee or the Fiscal Agent the
Advance Interest Amount relating to P&I Advances and (B) to pay to
the Servicer, Special Servicer, Trustee or Fiscal Agent any
Advance Interest Amounts not relating to any P&I Advances, in each
case, first, out of any collected Default Interest (provided that
in the case of both (A) and (B), the Trustee and the Fiscal Agent
shall have priority with respect to such payments);
(iv) to pay on or before each Servicer Remittance Date to the Servicer
and the Special Servicer, as applicable, as compensation, the
aggregate unpaid Servicing Compensation and Special Servicing
Compensation (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 (the Servicer may rely on a
certification of the Special Servicer as to amounts of Special
Servicing Compensation to be withdrawn pursuant to this clause
(iv));
(v) to remit to the Distribution Account, an amount equal to the
Trustee Fee in respect of the immediately preceding month to be
paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the
appropriate Mortgage Loan Seller or other Originator, as the case
may be, with respect to each Mortgage Loan or REO Property that
has previously been purchased or repurchased by it pursuant to
Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01,
all amounts received thereon during the related Collection Period
and subsequent to the date as of which the amount required to
effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause
of this Section 3.06, to reimburse or pay the Servicer, the
Trustee, the Special Servicer, the Depositor or the Fiscal Agent,
as applicable, for unpaid Servicing Fees, Special Servicing
Compensation and other unpaid items incurred by such Person
pursuant to the second sentence of Section 3.07(c), Section
3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a),
(b) and (c), Section 3.18(a), the fourth paragraph of Section
3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section
8.05(d) or Section 10.07, or any other provision of this Agreement
pursuant to which such Person is entitled to reimbursement or
payment from the Trust Fund, in each case only to the extent
reimbursable under such Section, it being acknowledged that this
clause (vii) shall not be deemed to modify the substance of any
such Section, including the provisions of such Section that set
forth the extent to which one of the foregoing Persons is or is
not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined by
the Trustee to be necessary to pay any applicable federal, state
or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier
REMIC under the circumstances and to the extent described in
Section 4.05;
(ix) to 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 (i)-(vii) above.
The Servicer shall pay to the Trustee, the Fiscal Agent or the Special
Servicer from the Collection Account (to the extent permitted by clauses
(i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Servicer may rely conclusively on any such certificate
and shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall
in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Compensation (including investment income), or Trustee
Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Servicer or the
Special Servicer, as applicable) and any federal, state or local taxes imposed
on either the Upper-Tier REMIC or Lower-Tier REMIC.
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the Lock-Box Accounts, the Cash Collateral
Accounts, the Interest Reserve Account and the Reserve
Accounts.
(a) The Servicer (or with respect to any REO Account, the Special Servicer,
or with respect to the Interest Reserve Account, NACC) may direct any depository
institution maintaining the Collection Account, any Borrower Accounts (subject
to the second succeeding sentence), the Interest Reserve Account and any REO
Account (each, for purposes of this Section 3.07, an "Investment Account"), to
invest the funds in such Investment Account in one or more Permitted Investments
that bear interest or are sold at a discount, and that mature, unless payable on
demand, no later than the Business Day preceding the date on which such funds
are required to be withdrawn from such Investment Account pursuant to this
Agreement. Any direction by the Servicer, the Special Servicer or by NACC, 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 NACC, with respect to the Interest Reserve Account,
or the Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Servicer), together with
any document of transfer, if any, necessary to transfer title to such investment
to the Trustee or its nominee. The Trustee shall have no responsibility or
liability with respect to the investment directions of the Servicer, the Special
Servicer, NACC, 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 NACC,
the Special Servicer, any Borrower or Manager or any losses resulting therefrom,
whether from Permitted Investments or otherwise. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Servicer (or the Special Servicer or NACC, 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 NACC, as
applicable) that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Servicer (except with respect
to the investment of funds deposited in (i) any Borrower Account, which shall be
for the benefit of the related Borrower to the extent required under the
Mortgage Loan or applicable law, (ii) any REO Account, which shall be for the
benefit of the Special Servicer or (iii) the Interest Reserve Account, which
shall be for the benefit of NACC) and, if held in the Collection Account or REO
Account shall be subject to withdrawal by the Servicer or the Special Servicer,
as applicable, in accordance with Section 3.06 or Section 3.17(b), as
applicable, and if held in the Interest Reserve Account, shall be subject to
withdrawal by NACC pursuant to written instructions. The Servicer (or with
respect to any REO Account, the Special Servicer, or with respect to the
Interest Reserve Account, NACC) shall deposit from its own funds into the
Collection Account, any REO Account or the Interest Reserve Account, as
applicable, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss; provided, however, that
the Servicer, Special Servicer, or NACC, 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 or, if the Servicer maintains the account in which such
Permitted Investment is held, the Servicer in the name of 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,
except with respect to any Borrower Account as to which the related Borrower
directs investments, which shall be at the expense of the Trust Fund.
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage.
(a) The Servicer on behalf of the Trustee, as mortgagee, shall cause the
related Borrower to maintain, to the extent required by each Mortgage Loan
(other than REO Mortgage Loans), and if the Borrower does not so maintain, shall
itself maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates, (i) fire
and hazard insurance with extended coverage on the related Mortgaged Property in
an amount which is at least equal to the lesser of (A) one hundred percent
(100%) of the then "full replacement cost" of the improvements and equipment,
(excluding foundations, footings and excavation costs), without deduction for
physical depreciation, and (B) the outstanding principal balance of the related
Mortgage Loan or such greater amount as is necessary to prevent any reduction in
such policy by reason of the application of co-insurance and to prevent the
Trustee thereunder from being deemed a co-insurer and provided such policy shall
include a "replacement cost" rider, (ii) insurance providing coverage against 12
months (or such longer period or with such extended period endorsement as
provided in the related Mortgage or other loan document) of rent interruptions,
provided, that no such business interruption insurance is required for the
Carmax Credit Lease Loans or the Circuit City Credit Lease Loans and (iii) such
other insurance as is required in the related Mortgage Loan. All insurance
referred to above for Mortgaged Properties shall be from a Qualified Insurer.
The Special Servicer shall maintain fire and hazard insurance with extended
coverage on each REO Property (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) in an amount which is at least equal to one
hundred percent (100%) of the then "full replacement cost" of the improvements
and equipment (excluding foundations, footings and excavation costs), without
deduction for physical depreciation. If the Special Servicer does not maintain
the insurance described in the preceding sentence or the required flood
insurance described below, the Servicer shall, as soon as practicable after
receipt of notice of such failure, maintain such insurance, and if the Servicer
does not maintain such insurance, the insurance required in the first sentence
of this Section 3.08(a) or the required flood insurance described below (if the
related Borrower fails to maintain such insurance), the Trustee shall, as soon
as practicable after receipt of notice of such failure, maintain such insurance
and if the Trustee does not maintain such insurance, the Fiscal Agent shall do
so, provided that, in each such case, such obligation will be subject to the
provisions of this Agreement concerning Nonrecoverable Advances. The Special
Servicer shall maintain, with respect to each REO Property (i) public liability
insurance providing such coverage against such risks as the Special Servicer
determines, consistent with the related Mortgage and the Servicing Standard, to
be in the best interests of the Trust Fund, (ii) insurance providing coverage
against 24 months of rent interruptions and (iii) such other insurance as was
required pursuant to the terms of the related Mortgage Loan. All insurance for
an REO Property shall be from a Qualified Insurer. Any amounts collected by the
Servicer or the Special Servicer under any such policies (other than amounts
required to be applied to the restoration or repair of the related Mortgaged
Property or amounts to be released to the Borrower in accordance with the terms
of the related Mortgage) shall be deposited into the Collection Account pursuant
to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any cost
incurred by the Servicer, Special Servicer, Trustee or Fiscal Agent 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, and
the Servicer, in performing its obligations hereunder in accordance with the
Servicing Standard, is aware of such location, the Servicer shall use its
reasonable best efforts to cause the related Borrower to maintain, to the extent
required by each Mortgage Loan, and if the related Borrower does not so
maintain, will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) flood insurance in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan and (ii) the maximum amount of
such insurance required by the terms of the related Mortgage and as is available
for the related property under the national flood insurance program (assuming
that the area in which such property is located is participating in such
program). If an REO Property (i) is located in a federally designated special
flood hazard area or (ii) is related to a Mortgage Loan pursuant to which
earthquake insurance was in place at the time of origination and continues to be
available at commercially reasonable rates, the Special Servicer will obtain
(subject to the provisions of this Agreement concerning Nonrecoverable Advances)
flood insurance and/or earthquake insurance in respect thereof providing
substantially the same coverage as described in the preceding sentences or, with
respect to earthquake insurance, in the amount required by the Mortgage Loan or,
if not specified, in-place at origination. If at any time during the term of
this Agreement a recovery under a flood or fire and hazard insurance policy in
respect of an REO Property is not available but would have been available if
such insurance were maintained thereon in accordance with the standards applied
to Mortgaged Properties described herein, the Special Servicer shall (subject to
the provisions of this Agreement concerning Nonrecoverable Advances) either (i)
immediately deposit into the Collection Account from its own funds the amount
that would have been recovered or (ii) apply to the restoration and repair of
the property from its own funds the amount that would have been recovered, if
such application would be consistent with the Servicing Standard; provided,
however, that the Special Servicer shall not be responsible for any shortfall in
insurance proceeds resulting from an insurer's refusal or inability to pay a
claim. In the case of any insurance otherwise required to be maintained pursuant
to this Section that is not being so maintained because the Servicer or the
Special Servicer, as applicable, has determined that it is not available at
commercially reasonable rates, the Servicer or the Special Servicer, as
applicable, shall deliver an Officer's Certificate to the Trustee and each
Rating Agency which details the steps that were taken in seeking such insurance
and the factors which led to the determination that such insurance was not so
available. Costs to the Servicer or Special Servicer of maintaining insurance
policies pursuant to this Section 3.08 shall be paid by the Servicer or Special
Servicer as a Property Advance and shall be reimbursable to the Servicer or
Special Servicer with interest at the Advance Rate, which reimbursement may be
effected under Section 3.06(ii) or (vii).
The Servicer (or the Special Servicer, with respect to the Specially
Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the
Trustee and the Certificateholders, claims under each related insurance policy
maintained pursuant to this Section 3.08(a) in a timely fashion in accordance
with the terms of such policy and to take such reasonable steps as are necessary
to receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee or the
Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as
loss payee.
Notwithstanding the foregoing provisions of this Section 3.08(a), the
Servicer may permit the Credit Tenants with respect to Circuit City Credit Lease
Loans and the Carmax Credit Lease Loans to self-insure with respect to the risks
required to be insured against by this Section 3.08(a) in accordance with the
terms of the related Credit Lease, and, with respect to certain credit tenants
at certain of the Mortgaged Properties who currently are self-insured for their
portion of such Mortgaged Property as of the Closing Date, the Servicer may
permit such tenant to continue to self-insure.
Any determination made by the Servicer or Special Servicer that insurance
is not commercially reasonably available shall be subject to confirmation by
Fitch, DCR and S&P that such determination not to purchase such insurance will
not result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates rated by Fitch, DCR and S&P, provided that
the Servicer and the Special Servicer shall not be required to maintain such
insurance while Fitch and S&P consider such determination.
(b) (I) If the Servicer or the Special Servicer, as applicable, obtains and
maintains a blanket insurance policy insuring against fire and hazard losses on
all of the Mortgaged Properties (other than REO Properties) as to which the
related Borrower has not maintained insurance required by the related Mortgage
Loan or on all of the REO Properties, as the case may be, it shall conclusively
be deemed to have satisfied its respective obligations concerning the
maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket
insurance policy shall be maintained with a Qualified Insurer. A blanket
insurance policy may contain a deductible clause, in which case the Servicer or
the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property a policy otherwise
complying with the provisions of Section 3.08(a), and (ii) there shall have been
one or more losses which would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account from its own funds
the amount not otherwise payable under the blanket policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard. In connection with its activities as Servicer or
the Special Servicer hereunder, as applicable, the Servicer or the Special
Servicer, respectively, agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy which it
maintains in a timely fashion in accordance with the terms of such policy and to
take such reasonable steps as are necessary to receive payment or permit
recovery thereunder.
(II) If the Servicer or the Special Servicer, as applicable, causes any
Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, such policy shall be issued by a Qualified Insurer and provide
no less coverage in scope and amount for such Mortgaged Property or REO Property
than the insurance required to be maintained pursuant to Section 3.08(a) in
which case the Servicer or Special Servicer shall conclusively be deemed to have
satisfied its respective obligations to maintain insurance pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case the Servicer
or the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property or REO Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under such policy because of
such deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a fidelity bond in
the form and amount that would meet the servicing requirements of prudent
institutional commercial mortgage lenders and loan servicers 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 or the Special Servicer shall cause
each and every sub-servicer for it to maintain, or cause to be maintained by any
agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer,
a fidelity bond and an errors and omissions insurance policy which satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds
and policies of errors and omissions insurance obtained under this Section
3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions.
(a) If any Mortgage Loan (other than the Westin Casuarina Resort 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 or such
provision is not legally enforceable, 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 of Fitch, DCR,
Moody's and S&P 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; provided, however, that if the Stated
Principal Balance of such Mortgage Loan is less than the lesser of (x) 2% of the
total aggregate Stated Principal Balances of the Mortgage Loans and (y)
$30,000,000, and is not one of the ten largest Mortgage Loans in the Trust Fund,
such written confirmation shall not be required from any of the Rating Agencies.
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.
Prior to waiving any "due on sale" clause, taking or entering into any
assumption agreement or permitting the release of a Borrower and substitution of
a new Borrower with respect to any Mortgage Loan, the Servicer shall first
provide to the Special Servicer a copy of its recommendation and the materials
upon which such recommendation is based and then provide the Special Servicer an
opportunity during a four Business Day period prior to taking any such action to
confer with them as to the advisability of such action (it being understood that
the Servicer shall not have any obligation to follow any instructions or
directions given to them by the Special Servicer with respect to such actions).
(b) If any Mortgage Loan (other than the Westin Casuarina Resort 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 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 of Fitch, Moody's, DCR and S&P 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.
Prior to waiving any "due on encumbrance" clause, or permitting the
creation of any lien or other encumbrance on a Mortgaged Property, the Servicer
shall first provide to the Special Servicer a copy of its recommendation and the
materials upon which such recommendation is based and then provide the Special
Servicer an opportunity during a four Business Day period prior to taking any
such action to confer with them as to the advisability of such action (it being
understood that the Servicer shall not have any obligation to follow any
instructions or directions given to them by the Special Servicer with respect to
such actions).
(c) Nothing in this Section 3.09 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, neither the Servicer nor the Special Servicer
shall agree to modify, waive or amend, and no assumption or substitution
agreement entered into pursuant to Section 3.09(a) shall contain any terms that
are different from, any term of any Mortgage Loan or the related Note, other
than pursuant to Section 3.30.
(e) With respect to any Mortgage Loan (other than the Westin Casuarina
Resort Loan) which permits release of Mortgaged Properties through defeasance:
(i) In the event such Mortgage Loan requires that the Servicer on
behalf of the Trustee purchase the required U.S. government
obligations, the Servicer shall purchase (upon receipt of
sufficient funds from the Borrower exercising such right of
defeasance) such obligations in accordance with the terms of such
Mortgage Loan; provided, that the Servicer shall not accept the
amounts paid by the related Borrower to effect defeasance until
acceptable U.S. government obligations have been identified.
(ii) In the event that such Mortgage Loan permits the assumption of the
obligations of the related Borrower by a successor mortgagor,
prior to permitting such assumption and to the extent not
inconsistent with such Mortgage Loan, the Servicer shall obtain
written confirmation from each Rating Agency that such assumption
would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the
Certificates.
(iii) To the extent not inconsistent with such Mortgage Loan, the
Servicer shall require an Opinion of Counsel to the related
Borrower (which shall be an expense of the related Borrower) to
the effect that the Trustee has a first priority security interest
in the defeasance deposit and the U.S. government obligations and
the assignment thereof is valid and enforceable; such opinion,
together with any other certificates or documents to be required
in connection with such defeasance shall be in form and substance
acceptable to each Rating Agency.
(iv) To the extent not inconsistent with the Mortgage Loan, the
Servicer shall require a certificate at the related Borrower's
expense from an Independent certified public accountant certifying
that the U.S. government obligations comply with the requirements
of the related Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged Properties through
defeasance, to the extent not inconsistent with the related
Mortgage Loan, the Servicer shall obtain written confirmation from
each Rating Agency that such defeasance would not, in and of
itself, result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Mortgage Loan so requires and provides
for the related Borrower to pay the cost thereof, the Servicer
shall require an Opinion of Counsel of the related Borrower to the
effect that such release will not cause either the Upper-Tier
REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding or cause a tax to be
imposed on the Trust Fund under the REMIC Provisions.
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Contemporaneously with the earliest of (i) the effective date of any
(A) modification of a Mortgage Rate, principal balance or amortization terms of
any Mortgage Loan, or any other term of a Mortgage Loan, (B) extension of the
Maturity Date of a Mortgage Loan as described below in Section 3.30(c), or (C)
consent to the release of any Mortgaged Property from the lien of the related
Mortgage other than pursuant to the terms of the related Mortgage Loan, (ii) the
occurrence of any Appraisal Reduction Event, (iii) a default in the payment of a
Balloon Payment, or (iv) the date on which the Special Servicer, consistent with
the Servicing Standard, requests that an Updated Appraisal be obtained, the
Servicer (after consultation with the Special Servicer) shall obtain an Updated
Appraisal; provided, however, that the Servicer shall not be required to obtain
an Updated Appraisal pursuant to clauses (i) through (iv) above with respect to
any Mortgaged Property for which there exists an appraisal which is less than
twelve months old. With respect to the Westin Casuarina Resort Loan, the
Servicer will be permitted to rely on any Updated Appraisal obtained by the
Servicer of Series 1997-D5. The Servicer shall obtain letter updates to each
Updated Appraisal annually and prior to the Special Servicer granting extensions
beyond one year or any subsequent extension after granting a one year extension
with respect to the same Mortgage Loan. For so long as any Mortgage Loan for
which an Updated Appraisal has been obtained is included in the Trust Fund, the
Servicer shall obtain a new Updated Appraisal with respect to an Updated
Appraisal which is more than two years old. The Servicer shall send all such
letter updates and Updated Appraisals to the Rating Agencies.
(b) Upon the occurrence of a material default under a Specially Serviced
Mortgage Loan, except as otherwise specifically provided in Section 3.09(a) and
(b), the Special Servicer may, consistent with the Servicing Standard,
accelerate such Specially Serviced Mortgage Loan and commence a foreclosure or
other acquisition with respect to the related Mortgaged Property or Properties,
provided, that the Special Servicer determines that such acceleration and
foreclosure are more likely to produce a greater recovery to Certificateholders
on a present value basis (discounting at the related Mortgage Rate) than would a
waiver of such default or an extension or modification in accordance with the
provisions of Section 3.30 hereof. In connection with any foreclosure or other
acquisition as to which the Special Servicer is not required to act under
Instructions from the Directing Holders, the Servicer shall pay the costs and
expenses in any such proceedings as an Advance unless the Servicer determines,
in its good faith judgment, that such Advance would constitute a Nonrecoverable
Advance. The Servicer shall be entitled to reimbursement of Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06(ii), (iii) and (vii). If the Special Servicer
is acting pursuant to Instructions, the cost and expenses in any such proceeding
shall be paid by the Directing Holders or the Special Servicer, without
reimbursement therefor by the Trust Fund.
(c) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state or locality 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 or locality do not permit such a deficiency
judgment after a non-judicial foreclosure or if the Special Servicer determines,
in its best judgment, that the likely recovery if a deficiency judgment is
obtained will not be sufficient to warrant the cost, time, expense and/or
exposure of pursuing the deficiency judgment and such determination is evidenced
by an Officers' Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate trustee or co-trustee on behalf of the Trustee
as holder of the Lower-Tier Regular Interests and Certificateholders.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an REO 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 shall remain in effect; and
(ii) Subject to Section 1.02(b), Net REO Proceeds received in any month
shall be applied to amounts that would have been payable under the
related Note in accordance with the terms of such Note. In the
absence of such terms, Net REO Proceeds shall be deemed to have
been received first in payment of the accrued interest (not
including Excess Interest) that remained unpaid on the date that
the related REO Property was acquired by the Trust Fund; second in
respect of the delinquent principal installments that remained
unpaid on such date; and thereafter, Net REO Proceeds received in
any month shall be applied to the payment of installments of
principal and accrued interest on such Mortgage Loan deemed to be
due and payable in accordance with the terms of such Note and such
amortization schedule until such principal has been paid in full
and then to Excess Interest and other amounts due under such
Mortgage Loan. If such Net REO Proceeds exceed the Monthly Payment
then payable, the excess shall be treated as a Principal
Prepayment received in respect of such Mortgage Loan.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the
Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion
of Counsel (which opinion shall be an expense of the Lower-Tier
REMIC) to the effect that the holding of such personal property by
the Lower-Tier REMIC will not cause the imposition of a tax on the
Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify
as a REMIC at any time that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund) to the effect that the holding of such partnership interest
or other equity interest by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an
environmental consultant, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary
to bring such Mortgaged Property in compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
currently effective federal, state or local law or regulation, or
that, if any such Hazardous Materials are present for which such
action could be required, after consultation with an environmental
consultant, it would be in the best economic interest of the Trust
Fund to take such actions with respect to the affected Mortgaged
Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section 3.10(g) shall be
prepared within three months of the determination that such assessment is
required by any Independent Person who regularly conducts environmental audits
for purchasers of commercial property where the Mortgaged Property is located,
as determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Servicer shall advance the cost of preparation of such
environmental assessments unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. The Special
Servicer shall provide such information as reasonably requested by the Servicer
or Sub-Servicer to determine whether such Advance, if made, would be a
Nonrecoverable Advance. The Servicer shall be entitled to reimbursement of
Advances (with interest at the Advance Rate) made pursuant to the preceding
sentence in the manner set forth in Section 3.06.
(i) If the Special Servicer determines pursuant to Section 3.10(g)(i) that
a Mortgaged Property is not in compliance with applicable environmental laws but
that it is in the best economic interest of the Trust Fund to take such actions
as are necessary to bring such Mortgaged Property in compliance therewith, or if
the Special Servicer determines pursuant to Section 3.10(g)(ii) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer, and only if the Trustee does not
receive, within 30 days of such notification, instructions from the Holders of
greater than 50% of the aggregate Voting Rights of such Classes directing the
Special Servicer not to take such action. Notwithstanding the foregoing, if the
Special Servicer reasonably determines that it is likely that within such 30-day
period irreparable environmental harm to such Mortgage Property would result
from the presence of such Hazardous Materials and provides a prior written
statement to the Trustee setting forth the basis for such determination, then
the Special Servicer may take such action to remedy such condition as may be
consistent with the Servicing Standard. None of the Trustee, the Servicer or the
Special Servicer shall be obligated to take any action or not take any action
pursuant to this Section 3.10(i) at the direction of the Certificateholders
unless the Certificateholders agree to indemnify the Trustee, the Servicer and
the Special Servicer with respect to such action or inaction. The Special
Servicer shall advance the cost of any such compliance, containment, clean-up or
remediation unless the Special Servicer determines, in its good faith judgment,
that such Advance would constitute a Nonrecoverable Advance.
(j) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan.
The Special Servicer shall deliver a copy of any such report to the Servicer,
the Sub-Servicer and the Trustee.
(k) The costs of any Updated Appraisal obtained pursuant to this Section
3.10 shall be paid by the Servicer as an Advance and shall be reimbursable from
the Collection Account (or from the Collateral Account to the extent Advances
are otherwise reimbursable therefrom pursuant to this Section 3.10).
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Servicer shall immediately notify the Trustee
or the Custodian by a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Servicer or Special Servicer and
delivery to the Trustee and the Custodian of a Request for Release, the Trustee
shall promptly cause the Custodian to release the Mortgage File (or any portion
thereof) designated in such Request for Release to the Servicer (or the
Sub-Servicer) or Special Servicer, as applicable. Upon return of the foregoing
to the Custodian, or in the event of a liquidation or conversion of the Mortgage
Loan into an REO Property, receipt by the Trustee of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the Collection Account or Distribution Account
have been so deposited, or that such Mortgage Loan has become an REO Property,
the Custodian shall deliver a copy of the Request for Release to the Servicer or
Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Servicer shall be
entitled with respect to each Mortgage Loan to the Servicing Fee, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Section 3.06(iv). The Servicer's rights to the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all or
part 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 (and not otherwise payable to the Special Servicer pursuant to Section
3.12(b)), any late payment charges, 75% of Assumption Fees, 75% of loan
modification fees, 75% of extension fees (provided that as long as AMRESCO
Services, L.P. is the Servicer, Servicer shall receive 100% of such Assumption
Fees, loan modification fees and 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 to receive, for any Specially Serviced Mortgage Loan, 25% of any
modification or Assumption Fees for any such Mortgage Loan for which the consent
of, or review by, the Servicer is specifically required pursuant to the terms
hereunder, including, without limitation, Section 3.28(l), Section 3.30(c) or
Section 3.30(b)(viii) (or if the Special Servicer requests the Servicer's
consent). The Servicer shall also be entitled pursuant to, and to the extent
provided in, Sections 3.06(iv) and 3.07(b) to withdraw from the Collection
Account and to receive from any Borrower Accounts (to the extent not payable to
the related Borrower under the Mortgage Loan or applicable law), the
Distribution Account, Upper-Tier Distribution Account, Default Interest
Distribution Account, and the Excess Interest Distribution Account, any interest
or other income earned on deposits therein. Notwithstanding the foregoing, the
Servicing Fee and investment income earned on any Principal Prepayments during
the related Collection Period and due to the Servicer on any Distribution Date
shall be reduced by the amount of any Servicer Prepayment Interest Shortfalls.
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 Compensation, 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 Special Servicing
Compensation, (i) to the extent permitted by applicable law and the related Loan
Documents, any Assumption Fees, modification fees, loan service transaction
fees, demand fees, statement charges and other fees relating to any Specially
Serviced Mortgage Loan or with respect to servicing activities performed by the
Special Servicer on any Specially Serviced Mortgage Loan, and, for any
modification, extension or other action by the Special Servicer with respect to
any Specially Serviced Mortgage Loan for which the consent of, or review by, the
Servicer is required, 75% of any modification, extension or other fees payable
by the related Borrower in connection therewith; and (ii) any interest or other
income earned on deposits in the REO Accounts. Special Servicer shall also
receive from the Sub-Servicer 25% of any loan modification fees and Assumption
Fees on Mortgage Loans which are not Specially Serviced Mortgage Loans. If a
review by, or the consent of, the Servicer is not specifically required pursuant
to the terms hereof including, without limitation, Section 3.28(l), Section
3.30(c) or Section 3.30(b)(viii) (and provided the Special Servicer does not
request the Servicer's consent) in connection with an extension, modification or
other action, the Special Servicer shall be entitled to the full amount of any
modification, extension or other fees.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) The Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(vii).
(d) No provision of this Agreement or of the Certificates shall require the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer or the Trustee receives a request or
inquiry from a Borrower, any Certificateholder or any other Person the response
to which would, in the Servicer's or the Trustee's good faith business judgment
require the assistance of Independent legal counsel or other consultant to the
Servicer, the Special Servicer or the Trustee, the cost of which would not be an
expense of the Trust Fund hereunder, then the Servicer, the Special Servicer or
the Trustee, as the case may be, shall not be required to take any action in
response to such request or inquiry unless the Borrower or such
Certificateholder or such other Person, as applicable, makes arrangements for
the payment of the Servicer's, the Special Servicer's or the Trustee's expenses
associated with such counsel (including, without limitation, posting an advance
payment for such expenses) satisfactory to the Servicer, the Special Servicer or
the Trustee, as the case may be, in its sole discretion. Unless such
arrangements have been made, the Servicer, the Special Servicer or the Trustee,
as the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Servicer shall deliver to the Trustee and the Special Servicer, no
later than 2:00 p.m. Central time on the Business Day prior to 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 and the Fiscal Agent 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) No later than 12:00 noon Central time on the Servicer Remittance Date,
the Servicer shall deliver or cause to be delivered to the Trustee the following
reports with respect to the Mortgage Loans (and, if applicable, the related REO
Properties), providing the required information as of the Due Date: (i) a
Comparative Financial Status Report, (ii) a Delinquent Loan Status Report; (iii)
an Historical Loss Estimate Report; (iv) an Historical Loan Modification Report;
(v) an REO Status Report; (vi) CSSA Reports; and (vii) a notice (with a copy to
the Rating Agencies) if during the preceding calendar month the Servicer becomes
aware that the rating then assigned to any credit tenant or related guarantor
with respect to a Credit Lease Loan is reduced, withdrawn or placed on credit
watch. Such reports shall be presented in writing and on a computer readable
medium reasonably acceptable to the Trustee. The information that pertains to
Specially Serviced Mortgage Loans and REO Properties reflected in such reports
shall be based solely upon the reports delivered by the Special Servicer to the
Servicer at least one Business Day prior to the related Servicer Remittance Date
in the form required by Section 3.13(f) or shall be provided by means of such
reports so delivered by the Special Servicer to the Servicer in the form so
required. The Servicer shall be entitled to conclusively rely upon, without
investigation or inquiry, the information and reports delivered to it by the
Special Servicer, and the Trustee shall be entitled to conclusively rely upon
the Servicer's reports and the Special Servicer's reports without any duty or
obligation to recompute, verify or recalculate any of the amounts and other
information stated therein (and such reports may include any reasonable
disclaimers with respect to information provided by third parties or with
respect to assumptions required to be made in the preparation of such reports as
the Servicer, the Special Servicer or Sub-Servicer deems appropriate).
(d) The Servicer shall deliver or cause to be delivered to the Trustee and
the Trustee shall deliver to the Special Servicer (and the Sub-Servicer shall
deliver or cause to be delivered directly to the Special Servicer) the following
materials, in each case to the extent that such materials or the information on
which they are based have been received by the Servicer:
(i) At least annually by June 30th, with respect to each Mortgage Loan
and REO Mortgage Loan (to the extent prepared by and received from
the Special Servicer in the case of any Specially Serviced
Mortgage Loan or REO Mortgage Loan), an Operating Statement
Analysis for the related Mortgaged Property or REO Property as of
the end of the preceding calendar year, together with copies of
the operating statements and rent rolls (but only to the extent
the related Borrower is required by the Mortgage to deliver, or
otherwise agrees to provide such information and, with respect to
operating statements and rent rolls for Specially Serviced
Mortgage Loans and REO Properties, only to the extent requested by
the Special Servicer) for the related Mortgaged Property or REO
Property as of the end of the preceding fiscal year. The Servicer
shall use its best reasonable efforts to obtain said annual
operating statements and rent rolls with respect to each of the
Mortgage Loans other than Specially Serviced Mortgage Loans or REO
Mortgage Loans, which efforts shall include a letter sent to the
related Borrower each quarter (followed up with telephone calls)
requesting such annual operating statements and rent rolls until
they are received to the extent such action is consistent with
applicable law and the terms of the Mortgage Loans.
(ii) Within thirty days after receipt by the Servicer (or the Special
Servicer in the case of a Specially Serviced Mortgage Loan or REO
Property) of any annual operating statements with respect to any
Mortgaged Property or REO Property (to the extent prepared by and
received from the Special Servicer in the case of any Specially
Serviced Mortgage Loan or REO Property), an NOI Adjustment
Worksheet for such Mortgaged Property (with the annual operating
statements attached thereto as an exhibit) (and such reports may
include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required
to be made in the preparation of such reports as the Servicer, the
Special Servicer or Sub-Servicer deems appropriate).
The Servicer shall maintain one Operating Statement Analysis report for each
Mortgaged Property and REO Property (to the extent prepared by and received from
the Special Servicer in the case of any REO Property or any Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan). The Operating
Statement Analysis report for each Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) is to be updated by the Servicer and such updated report
delivered to the Trustee within thirty days after receipt by the Servicer of
updated operating statements for such Mortgaged Property. The Servicer will use
the "Normalized" column from the NOI Adjustment Worksheet to update the
Operating Statement Analysis report and will use any operating statements
received with respect to any Mortgaged Property (other than any such Mortgaged
Property which is REO Property or constitutes security for a Specially Serviced
Mortgage Loan) to update the Operating Statement Analysis report for such
Mortgaged Property, such updates to be completed and copies thereof sent to the
Trustee within thirty days after receipt of the necessary information (and such
reports may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to be made in
the preparation of such reports as the Servicer, the Special Servicer or
Sub-Servicer deems appropriate).
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Servicer the information required pursuant to this Section
3.13(d) with respect to Specially Serviced Mortgage Loans and REO Mortgage Loans
on or before June 10th of each year, commencing on June 10, 1998, and within 15
days after its receipt of any operating statement for any related Mortgaged
Property or REO Property.
(e) No later than 12:00 noon Central time on the Servicer Remittance Date,
beginning in May 1998, the Servicer shall prepare and deliver to the Trustee and
the Special Servicer, a Watch List of all Mortgage Loans that the Servicer has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans. For
this purpose, Mortgage Loans that are in jeopardy of becoming Specially Serviced
Mortgage Loans shall include, without limitation: (i) Mortgage Loans having a
current Debt Service Coverage Ratio that is 80% or less of the trailing
twelve-month Debt Service Coverage Ratio as of the Cut-off Date (as stated on
Annex A to the Prospectus) or having a current trailing twelve-month Debt
Service Coverage Ratio that is less than 1.05x (other than Credit Lease Loans),
(ii) Mortgage Loans as to which any required inspection of the related Mortgaged
Property conducted by the Servicer indicates a problem that the Servicer
determines can reasonably be expected to materially adversely affect the cash
flow generated by such Mortgaged Property, (iii) Mortgage Loans which have come
to the Servicer's attention in the performance of its duties under this
Agreement (without any expansion of such duties by reason hereof) that (A) any
tenant occupying 25% or more of the space in the related Mortgaged Property has
vacated (without being replaced by a comparable tenant and lease) or been the
subject of bankruptcy or similar proceedings or (B) relate to a borrower or an
affiliate that is the subject of a bankruptcy or similar proceeding, (iv)
Mortgage Loans that are at least one Collection Period delinquent in payment,
and (v) Mortgage Loans that are within 60 days of maturity (and such reports may
include any reasonable disclaimers with respect to information provided by third
parties or with respect to assumptions required to be made in the preparation of
such reports as the Servicer, the Special Servicer or Sub-Servicer deems
appropriate).
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 event that comes to their knowledge with respect to a Mortgage
Loan or REO Property that the Servicer or the Special Servicer, respectively,
determines, in accordance with Servicing Standards, 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.
(f) At least one Business Day prior to each Servicer Remittance Date, the
Special Servicer shall deliver, or cause to be delivered, to the Servicer, DCR
and S&P and, upon the request of any of the Trustee, the Depositor, the
Underwriters or any other Rating Agency, to such requesting party, the following
reports with respect to the Specially Serviced Mortgage Loans (and, if
applicable, the related REO Properties), providing the required information as
of the Due Date: (i) a Delinquent Loan Status Report; (ii) an Historical Loss
Estimate Report; (iii) an Historical Loan Modification Report; (iv) an REO
Status Report; and (v) Comparative Financial Status Reports with respect to all
Specially Serviced Mortgage Loans and (vi) CSSA Reports. Such reports shall be
presented in writing and on a computer readable magnetic medium (and such
reports may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to be made in
the preparation of such reports as the Servicer, the Special Servicer or
Sub-Servicer deems appropriate).
(g) The Special Servicer shall deliver or cause to be delivered to the
Servicer, DCR and S&P and, upon the request of any of the Trustee, the
Depositor, the Underwriters or any other Rating Agency, to such requesting
party, the following materials, in each case to the extent that such materials
or the information on which they are based have been received by the Special
Servicer:
(i) Annually, on or before June 10 of each year, commencing with June
10, 1998, with respect to each Specially Serviced Mortgage Loan
and REO Mortgage Loan, an Operating Statement Analysis for the
related Mortgaged Property or REO Property as of the end of the
preceding calendar year, together with copies of the operating
statements and rent rolls for the related Mortgaged Property or
REO Property as of the end of the preceding calendar year. The
Special Servicer shall use its best reasonable efforts to obtain
said annual operating statements and rent rolls with respect to
each Mortgaged Property constituting security for a Specially
Serviced Mortgage Loan and each REO Property, which efforts shall
include a letter sent to the related Borrower or other appropriate
party each quarter (followed up with telephone calls) requesting
such annual operating statements and rent rolls until they are
received.
(ii) Within 20 days of receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property
relating to a Specially Serviced Mortgage Loan, or at least six
months of operating information with respect to any REO Property,
an NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the annual operating statements attached thereto as
an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is a REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Servicer within 20 days after receipt by the Special Servicer
of updated operating statements for each such Mortgaged Property. In addition,
the Special Servicer shall provide each such report to the Servicer in the then
applicable CSSA format. The Special Servicer will use the "Normalized" column
from the NOI Adjustment Worksheet to update the Operating Statement Analysis
report and will use any operating statements received with respect to any
Mortgaged Property which constitutes security for a Specially Serviced Mortgage
Loan or is a REO Property to update the Operating Statement Analysis report for
such Mortgaged Property, such updates to be completed and copies thereof sent to
the Servicer within 20 days after receipt of the necessary information.
(h) 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, 1999, an Officer's Certificate
stating, as to each signatory thereof, (i) that a review of the activities of
the reporting person during the preceding calendar year (or such shorter period
from the Closing Date to the end of the related calendar year) and of its
performance under this Agreement has been made under such officer's supervision,
(ii) that, to the best of such officer's knowledge, based on such review, the
reporting person has fulfilled all of its material obligations under this
Agreement throughout such year (or such shorter period), or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer, the nature and status thereof and what action it proposes
to take with respect thereto, (iii) that, to the best of such officer's
knowledge, each related sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, and (iv)
whether it has received any notice regarding qualification, or challenging the
status, of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC from the IRS or
any other governmental agency or body.
SECTION 3.15. Annual Independent Public Accountants' Servicing Report.
On or before March 15 of each year, beginning with March 15, 1999, the
Servicer and the Special Servicer (the "reporting person") each at the reporting
person's expense shall cause a firm of nationally recognized Independent public
accountants (who may also render other services to the reporting person) which
is a member of the American Institute of Certified Public Accountants to furnish
a statement (an "Accountant's Statement") to the Trustee, the Depositor and to
the Rating Agencies, to the effect that such firm has examined certain documents
and records relating to the servicing of the similar mortgage loans under
similar agreements and that, on the basis of such examination conducted
substantially in compliance with generally accepted auditing standards and the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC, such servicing has been conducted in compliance
with similar agreements except for such significant exceptions or errors in
records that, in the opinion of such firm, generally accepted auditing standards
and the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FHLMC require it to report, in which case
such exceptions and errors shall be so reported. Each reporting person shall
obtain from the related accountants, or shall prepare, an electronic version of
each Accountant's Statement and provide such electronic version to the Trustee
for filing in accordance with the procedures set forth in Section 3.22 hereof.
With respect to any electronic version of an Accountant's Statement prepared by
the reporting person, the reporting person shall receive written confirmation
from the related accountants that such electronic version is a conformed copy of
the original Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any Certificateholders
that are federally insured financial institutions, the Federal Reserve Board,
the FDIC and the OTS and the supervisory agents and examiners of such boards and
such corporations, and any other governmental or regulatory body to the
jurisdiction of which any Certificateholder is subject, access to the
documentation regarding the Mortgage Loans required by applicable regulations of
the Federal Reserve Board, FDIC, OTS or any such governmental or regulatory
body, such access being afforded without charge but only upon reasonable request
and during normal business hours at the offices of the Servicer 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.
(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 prior to the close of the third calendar year following the
year in which 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 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 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. Consistent 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 Nomura Asset Securities Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-D6, 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; provided,
however, the Special Servicer shall make reasonable efforts to request Advances
once in any 30 day period to satisfy all such shortfalls. The Special Servicer
shall reasonably cooperate with the Servicer in providing any information
required to determine whether an Advance would be a Nonrecoverable Advance and
the Servicer shall reasonably cooperate with the Special Servicer in providing
any information required to determine whether an 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 or on the related Due 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 (in the case of DCR only if the
Stated Principal Balance of such Mortgage Loan exceeds 2% of the total aggregate
Stated Principal Balance of the Mortgage Loans) 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 30
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 and Sub-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 by an appraiser who is an MAI 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 deliver to the
Trustee a statement prepared by the Special Servicer setting forth the amount of
net income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties.
(a) With respect to any Specially Serviced Mortgage Loan or REO Property
which the Special Servicer has determined to sell in accordance with the
provisions hereof, the Special Servicer shall deliver to the Trustee an
Officers' Certificate to the effect that pursuant to the terms hereof, the
Special Servicer has determined to sell such Specially Serviced Mortgage Loan or
REO Property in accordance with this Section 3.18. The Special Servicer may then
offer to sell to any Person any Specially Serviced Mortgage Loan or any REO
Property or, subject to the following sentence, purchase any such Specially
Serviced Mortgage Loan or REO Property (in each case at the Repurchase Price
therefor), but shall, in any event, so offer to sell any REO Property no later
than the time determined by the Special Servicer to be sufficient to result in
the sale of such REO Property within the period specified in Section 3.17(a).
The Special Servicer shall deliver such Officers' Certificate and give the
Trustee not less than ten Business Days prior written notice of its intention to
sell any Specially Serviced Mortgage Loan or REO Property, in which case the
Special Servicer shall accept the highest offer (of at least three offers)
received from any Person for any Specially Serviced Mortgage Loan or any REO
Property in an amount at least equal to the Repurchase Price therefor or, at its
option, if it has received no offer at least equal to the Repurchase Price
therefor, purchase the Specially Serviced Mortgage Loan or REO Property at the
Repurchase Price.
In the absence of any such offer or purchase by the Special Servicer, the
Special Servicer shall accept the highest offer received from any Person that is
determined by the Special Servicer to be a fair price, as determined in
accordance with Section 3.18(b), for such Specially Serviced Mortgage Loan or
REO Property, if the highest offeror is a Person other than an Interested
Person, or is determined to be a fair price by the Trustee in accordance with
Section 3.18(b), if the highest offeror is an Interested Person; provided, that
the Trustee shall be entitled to engage, at the expense of the Trust Fund, an
Independent appraiser to determine whether the highest offer is a fair price
and, further provided, that if the highest offeror is an Interested Person such
offer shall not be accepted if it is less than the Repurchase Price, unless the
Rating Agencies have confirmed, in writing, that such acceptance will not, in
itself, result in the qualification, downgrade or withdrawal of the then-current
ratings assigned to the Certificates. Notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower offer are more favorable),
provided that the offeror is not an Affiliate of the Special Servicer. In the
event that the Special Servicer determines with respect to any REO Property that
the offers being made with respect thereto are not in the best interests of the
Certificateholders and that the end of the 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 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 Independent expert in real estate matters retained by the
Trustee at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Special Servicer (if the highest offeror is not an Interested
Person) or the Trustee (or, if applicable, such appraiser) shall take into
account, and any appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, any Updated
Appraisal previously obtained, the period and amount of any delinquency on the
affected Specially Serviced Mortgage Loan, the physical (including
environmental) condition of the related Mortgaged Property or such REO Property,
the state of the local economy and the Trust Fund's obligation to dispose of any
REO Property within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Servicer, the Special Servicer or
the Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary warranties of title, so long as the only
recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Servicer,
the Depositor, the Fiscal Agent and the Trustee pursuant to the terms of this
Agreement, no such Person who so performed shall have any liability to the Trust
Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer or, if the offeror is an Interested Person, the
Servicer (or the Trustee, if the Servicer is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with 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 and Special Servicer;
Inspections.
(a) The Servicer (or, with respect to Specially Serviced Mortgage Loans and
REO Properties, the Special Servicer) shall inspect or cause to be inspected
(each at its own expense, respectively) 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 June 1998 (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 1.05 (except with respect to Credit Lease
Loans) or (iii) is delinquent for 60 days, each Mortgaged Property related to
such Specially Serviced Mortgage Loan 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. The Servicer or Special Servicer, as applicable, shall
send to the Rating Agencies, within 20 days of completion, each inspection
report. For any Mortgage Loans serviced by the initial Servicer, Special
Servicer may provide notice to the initial Servicer of its intent to inspect a
Mortgaged Property. Upon completion of the inspection of such Mortgaged
Property, Special Servicer shall provide a copy of the inspection report for
such property to the Servicer and Servicer shall be relieved of its then current
obligation to inspect such property.
The Special Servicer shall have the right to inspect Mortgaged Properties
that are on the Sub-Servicer's Watch List, provided that the Special Servicer
notifies the Sub-Servicer prior to such inspection and provides a copy of the
inspection report for such property to the Sub-Servicer.
(b) With respect to each Mortgage Loan, the Servicer (or the Special
Servicer, in the case of a Specially Serviced Mortgage Loan) shall enforce the
Trustee's rights with respect to the Manager under the related Loan Documents
and Management Agreement, provided, that, if such right accrues under the
related Loan Documents or Management Agreement only because of the occurrence of
the related Anticipated Repayment Date, if any, the Servicer (or Special
Servicer, if applicable) shall irrevocably waive such right with respect to such
date. In the event the Servicer (or Special Servicer, as applicable) is entitled
to terminate the Manager, the Servicer (or Special Servicer, as applicable)
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 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 such notice to respond to such notice. Upon receipt of a recommendation to
terminate the Manager and appoint a Successor Manager, the Servicer (or Special
Servicer, as applicable) shall give notice of such recommendation to the Trustee
(who shall copy the Certificateholders), and the Servicer (or Special Servicer,
as applicable) 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 (or Special Servicer, as applicable) shall procure a Successor Manager
as set forth in the following sentence; or (ii) the Servicer (or Special
Servicer, as applicable) determines that effecting such recommendation to
terminate is not consistent with the Servicing Standard, the Servicer (or
Special Servicer, as applicable) shall only effect such recommendation if within
30 days of giving notice to all other Holders the Servicer (or Special Servicer,
as applicable) 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 (or Special Servicer, as applicable) 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 (or Special Servicer, as applicable) 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 (or Special Servicer, as applicable). For the purposes
of this paragraph, a "Successor Manager" shall be reasonably acceptable to the
Servicer (or Special Servicer, as applicable) 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 of Fitch, DCR, (in the case of DCR, only if the Stated
Principal Balance of such Mortgage Loan exceeds 2% of the total aggregate Stated
Principal Balance of the Mortgage Loans) Moody's and S&P and (iii) otherwise
satisfies any criteria set forth in the Mortgage and related documents.
(c) With respect to site inspection information, quarterly and annual
Borrower financial information, the Sub-Servicer shall make such inquiry of any
Borrower under any related Mortgage Loan as the Special Servicer may reasonably
request.
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, DCR 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 the 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, or
shall be otherwise acceptable to the Rating Agencies.
SECTION 3.22. Reports to the Securities and Exchange Commission; Available
Information.
(a) The Servicer shall prepare and sign, on behalf of the Depositor, any
and all Exchange Act Reports; provided, however, that (i) the Depositor shall
prepare, sign and file with the Commission the initial Form 8-K relating to the
Trust Fund and (ii) the Special Servicer shall prepare and sign on behalf of the
Depositor any Exchange Act Report which includes an Annual Compliance Report
relating to the Special Servicer. Each Exchange Act Report consisting of a
monthly Distribution Date Statement, Comparative Financial Status Report,
Delinquent Loan Status Report, Historical Loss Estimate Report, Historical Loan
Modification Report, REO Status Report, Operating Statement Analysis, NOI
Adjustment Worksheet, Watch List, or report pursuant to Section 4.02(b) 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 Date
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 Date Statement thereto as an exhibit. Exchange Act Reports
consisting of (i) a monthly Distribution Date Statement shall be filed within
ten days after the related Distribution Date; (ii) a Comparative Financial
Status Report, Delinquent Loan Status Report, Historical Loss Estimate Report,
Historical Loan Modification Report, REO Status Report, Operating Statement
Analysis, NOI Adjustment Worksheet, Watch List, or report pursuant to Section
4.02(b) shall be filed within ten days after each Distribution Date; and (iii)
an Annual Compliance Report shall be filed 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 (and its attorneys, Cadwalader, Wickersham & Taft, Attn:
Anna H. Glick) 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 Nez Mustafic (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 filed under the Exchange Act, 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, at the written direction of the Depositor, solicit any
and all proxies of the Certificateholders whenever such proxies are required to
be solicited pursuant to the Exchange Act.
(b) Intentionally left blank.
(c) The Servicer, or the Special Servicer with respect to Specially
Serviced Mortgage Loans 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, or the Special Servicer with respect to Specially Serviced
Mortgage Loans, 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, or the Special Servicer
with respect to Specially Serviced Mortgage Loans 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.
(d) The Servicer and the Special Servicer shall make available at their
offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies and the
Depositor) 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, retail sales
information, average daily room rates and similar information received by the
Servicer or the Special Servicer, as applicable, from each Borrower, (ii) the
inspection reports prepared by or on behalf of the Servicer or the Special
Servicer, as applicable, in connection with the property inspections pursuant to
Section 3.19, (iii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Servicer or the Special Servicer,
as applicable and (iv) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available from
the Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request.
(e) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.22, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(f) Notwithstanding any provisions in this Agreement to the contrary, the
Trustee shall not be required to review the content of any Exchange Act Report
for compliance with applicable securities laws or regulations, completeness,
accuracy or otherwise, and the Trustee shall have no liability with respect to
any Exchange Act Report filed with the Commission or delivered to
Certificateholders. None of the Servicer, the Special Servicer and the Trustee
shall be responsible for the accuracy or completeness of any information
supplied by a Borrower or a third party for inclusion in any Form 8-K, and each
of the Servicer, the Special Servicer and the Trustee shall be indemnified and
held harmless by the Trust Fund against any loss, liability or expense incurred
in connection with any legal action relating to any statement or omission or
alleged statement or omission therein. None of the Trustee, the Special Servicer
and the Servicer shall have any responsibility or liability with respect to any
Exchange Act Report filed by the Depositor, and each of the Servicer, the
Special Servicer and the Trustee shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to any statement or omission or alleged statement or
omission therein.
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts
and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash Collateral
Account, Escrow Account and Reserve Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer (or, to the extent provided in Section 3.24(b), the
Trustee or the Fiscal Agent or to the extent specifically provided for in this
Agreement, the Special Servicer) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof. For purposes of
distributions to Certificateholders and compensation to the Servicer, Special
Servicer or Trustee, Property Advances shall not be considered to increase the
principal balance of any Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so provide.
(b) The Servicer shall notify the Trustee and the Fiscal Agent, and the
Special Servicer shall notify the Servicer, the Trustee and the Fiscal Agent, in
writing promptly upon, and in any event within one Business Day after, becoming
aware that it will be unable to make any Property Advance required to be made
pursuant to the terms hereof, and in connection therewith, shall set forth in
such notice the amount of such Property Advance, the Person to whom it will be
paid, and the circumstances and purpose of such Property Advance, and shall set
forth therein information and instructions for the payment of such Property
Advance, and, on the date specified in such notice for the payment of such
Property Advance, or, if the date for payment has passed or if no such date is
specified, then within five Business Days following such notice, the Trustee (or
with respect to a Property Advance required to be made by the Special Servicer,
the Servicer, and if the Servicer so fails, the Trustee), subject to the
provisions of Section 3.24(c), shall pay the amount of such Property Advance in
accordance with such information and instructions. If the Trustee fails to make
any Property Advance required to be made under this Section 3.24, the Fiscal
Agent, subject to the provisions of Section 3.24(c), shall make such Advance on
the same day the Trustee was required to make such Property Advance and,
thereby, the Trustee shall not be in default under this Agreement.
(c) None of the Servicer, the Trustee, the Fiscal Agent or the Special
Servicer shall be obligated to make a Property Advance as to any Mortgage Loan
or REO Property if the Servicer, the Trustee, the Fiscal Agent or the Special
Servicer, as applicable, determines that such Advance will be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent (or the Servicer with respect to a
Property Advance required to be made by the Special Servicer) shall be entitled
to rely, conclusively, on any determination by the Servicer or Special Servicer,
as applicable, that a Property Advance, if made, would be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent, in determining whether or not a
Property Advance previously made is, or a proposed Property Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Servicer hereunder.
(d) The Servicer, the Special Servicer, the Trustee and/or the Fiscal
Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Servicer and Special Servicer hereby
covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.25. Appointment of Special Servicer.
(a) CRIIMI MAE Services Limited Partnership is hereby appointed as the
initial Special Servicer to service each Specially Serviced Mortgage Loan.
(b) Certificateholders representing greater than 50% of the Percentage
Interests of the most subordinate Class of Certificates outstanding at any time
shall be entitled to remove the Special Servicer with or without cause and to
appoint a successor Special Servicer, provided that each Rating Agency confirms
to the Trustee in writing that such removal and appointment, in and of itself,
would not cause 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. 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 (provided that receipt of copies of all
documents in the Mortgage File shall suffice for such purpose). With respect to
each Mortgage Loan that becomes a Specially Serviced Mortgage Loan, the Servicer
shall instruct the related Borrower to continue to remit all payments in respect
of such Mortgage Loan to the Servicer. The Servicer 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 Loan, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Servicer to service and administer such Mortgage Loan as a Mortgage Loan
that is not a Specially Serviced Mortgage Loan shall resume. In addition, if the
related Borrower has been instructed, pursuant to the last sentence of the
preceding paragraph, to make payments to the Special Servicer, upon such
determination, the Special Servicer shall instruct the related Borrower to remit
all payments in respect of such 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 and the Sub-Servicer as well as
copies of any analysis or internal review prepared by or for the benefit of the
Special Servicer.
(c) Not later than the Business Day preceding each date on which the
Servicer is required to furnish a report under Section 3.13(a) to the Trustee,
the Special Servicer shall deliver to the Trustee, with a copy to the Servicer
and the Sub-Servicer, a written statement describing, on a Mortgage Loan by
Mortgage Loan basis (for all Mortgage Loans for which the Special Servicer is
collecting the payments thereon), (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 Account.
(a) 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
Interest Reserve Loans, for deposit into the Interest Reserve Account, an amount
equal to one day's interest (assuming a 360-day year) on the Stated Principal
Balance of the Interest Reserve Loans as of the Due Date occurring in the month
preceding the month in which such Servicer Remittance Date occurs at the related
Net 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, "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer shall
instruct the Trustee to withdraw from the Interest Reserve Account an amount
equal to the Withheld Amounts from the preceding January, if any, and February
and deposit such amount into the Distribution Account.
SECTION 3.28. Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan secured by
Mortgaged Properties located in a "one-action" state, the Servicer or Special
Servicer, as applicable, shall consult with legal counsel, the fees and expenses
of which shall be an expense of the Trust Fund.
(b) With respect to any Mortgage Loan which permits the related Borrower,
with the consent or grant of a waiver by mortgagee, to incur additional
indebtedness, to grant additional encumbrances against the related Mortgaged
Property or to amend or modify the related Borrower's organizational documents
or the organizational documents of the owner of the Borrower, then the Servicer
or the Special Servicer, as applicable may only either consent to such action,
or grant a waiver with respect thereto, if the Servicer or the Special Servicer,
as applicable 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 Servicer or 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.
(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 NACC and shall promptly
notify and send such bills to NACC, Attention: Marlyn A. Marincas. NACC will
notify each Rating Agency to bill NACC for such services and to send such bills
to the Servicer. The Servicer shall notify NACC of the portion of the bill that
it has paid from funds collected from such Borrowers and NACC will pay such
portion of the bill not paid from funds provided by the applicable Borrowers (as
described in this section (c)).
(d) With respect to all Mortgage Loans that provide that the holder of the
related Note may apply amounts received thereunder (including, without
limitation, Liquidation Proceeds) against principal, interest and any other sums
due in the order as the holder shall determine, the Servicer shall apply amounts
received in respect of such Mortgage Loans (i) first to interest (other than
Excess Interest or Default Interest) due thereunder; (ii) next to principal;
(iii) next to default interest due thereunder; (iv) next to Prepayment Premiums
(except for Return of Fee Amounts) due thereunder; (v) then to any Excess
Interest due thereunder; (vi) then to reimburse any litigation or other expenses
incurred in collecting any such amounts received in respect of such Mortgage
Loan; (vii) then to any Return of Fee Amounts due thereunder and (viii) finally
to any other sums due thereunder.
(e) With respect to the Mortgage Loans that have Anticipated Repayment
Dates, the Servicer (including the Servicer in its capacity as a
Certificateholder, if applicable), shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the maturity date of the related Mortgage Loan.
(f) To the extent not inconsistent with the related Mortgage Loan, neither
the Servicer nor the Special Servicer shall consent to a change of franchise
affiliation with respect to a Mortgaged Property unless it obtains written
confirmation from Fitch, DCR, 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.
(g) With respect to any Mortgage Loan secured by a senior
housing/healthcare facility, the Special Servicer shall hire a consultant which
is experienced in the operation of such facilities in the event that such
Mortgage Loan becomes a Specially Serviced Mortgage Loan.
(h) With respect to the Mortgage Loans that have Anticipated Repayment
Dates, the Servicer shall be permitted, in its discretion, to waive all or any
accrued Excess Interest if, prior to the related maturity date, the related
Borrower has requested the right to prepay the Mortgage Loan in full together
with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Excess Interest, provided that
the Servicer's determination to waive the right to such accrued Excess Interest
is reasonably likely to produce a greater payment to Certificateholders on a
present value basis than a refusal to waive the right to such Excess Interest.
Any such waiver shall not be effective until such prepayment is tendered. The
Servicer will have no liability to the Trust Fund, the Certificateholders or any
other person so long as such determination is based on such criteria. Other than
pursuant to Section 3.30, the Special Servicer shall have no right to waive the
payment of Excess Interest under the circumstances described in this Section
3.28(h).
(i) 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. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates shall be
subject to confirmation by Fitch that such determination not to purchase such
insurance will not result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates rated by Fitch.
(j) 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.
(k) Each of the Servicer and the Special Servicer hereby agrees to use
efforts consistent with the Servicing Standard to abide by the terms and
conditions precedent to payment of claims under any Lease Enhancement Policies
and Residual Value Policies and to use efforts consistent with the Servicing
Standard to take all such action as may be required to comply with the terms and
provisions of such policies in order to maintain, in full force and effect, such
Lease Enhancement Policies and Residual Value Policies, including, but not
limited to, (i) notifying the related insurer in writing as soon as reasonably
practicable, but in any event within the time period required under the Lease
Enhancement Policy, after the Servicer or the Special Servicer, as applicable,
first receives written notification of the commencement of a condemnation
proceeding with respect to any Mortgaged Property covered by a Lease Enhancement
Policy, (ii) notifying the insurer in writing as soon as reasonably practicable,
but in any event within the time period required under the Lease Enhancement
Policy, after the Servicer or the Special Servicer, as applicable, first
receives written notification of the occurrence of physical damage with respect
to any such Mortgaged Property that may be covered by such policy and (iii)
notifying the insured as soon as reasonably practicable, but in any event within
the time period required under the Lease Enhancement Policy, after the Servicer
or the Special Servicer, as applicable, first receives written notification of
termination or rent abatement by the related credit tenant with respect to any
credit lease underlying a Mortgaged Property covered by a Lease Enhancement
Policy. In addition to complying with all conditions to coverage, each of the
Servicer and the Special Servicer hereby agrees that it will use efforts
consistent with the Servicing Standard to take any and all actions required
under the Lease Enhancement Policy or Residual Value Policy in connection with
any claim, including (i) the timely presentation of a proof of loss containing
all required information, (ii) the prosecution of all claims relating to a
casualty or condemnation, consistent with the Servicing Standard, which will
maximize any recoveries or awards from sources other than the insurer under the
Lease Enhancement Policy, (iii) providing reasonable access to any Mortgaged
Property (but only to the extent such access is available pursuant to the
related Loan Documents, applicable law and the related Credit Lease), (iv) the
providing of any other notices required under the Lease Enhancement Policies or
Residual Value Policy in a timely fashion and any other actions which will
maximize any recoveries under the Lease Enhancement Policies, and (v) the timely
submission of claims under the Lease Enhancement Policy or Residual Value Policy
to the extent the Servicer or the Special Servicer, as applicable, determines in
accordance with the Servicing Standard that any such claim would not be excluded
under the terms of the Lease Enhancement Policy or Residual Value Policy. Any
and all amounts collected under a Lease Enhancement Policy or Residual Value
Policy shall be immediately deposited in the Collection Account, subject to
withdrawal as provided herein.
(l) For any Specially Serviced Mortgage Loan and with respect to which,
under the terms of the related Loan Documents, the mortgagee may, in its
discretion, apply Insurance Proceeds, condemnation awards or escrowed funds to
the prepayment of such loan prior to the expiration of the related Lock-out
Period, the Special Servicer may only make such a prepayment if the Special
Servicer has first received the prior written consent of the Servicer (which
consent will be given or withheld in accordance with the Servicing Standard).
(m) 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 (upon receipt of sufficient funds from the related Borrower) 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.
(n) The Servicer (together with its employees, officer and directors) shall
not utilize the proprietary and nonpublic information that it becomes aware of
in servicing the Mortgage Loans to render advice in connection with, solicit, or
otherwise participate in the refinancing of any Mortgage Loans (whether at
maturity or otherwise, unless the Mortgage Loan Seller confirms in writing that
it will not pursue the refinancing of such Mortgaged Property). Neither the
Servicer nor the Special Servicer shall make its Mortgage Loan Servicing System
available to the Servicer's Affiliates or the Special Servicer's Affiliates,
respectively, engaged in the commercial mortgage origination business for the
purpose of refinancing a Mortgage Loan prior to or at its due date. The
provisions of this Section 3.28(n) shall not be applicable to Sub-Servicer in
its capacity as subservicer nor in the capacity as a successor Servicer.
(o) The Servicer shall administer the Westin Casuarina Resort Loan in
accordance with the Westin Casuarina Co-Lender Agreement, including making a pro
rata share of any Property Advances pursuant to Section 3 of such agreement,
unless the servicer under Series 1997-D5 determines that such Advance will be a
Nonrecoverable Advance.
(p) With respect to each Credit Lease Loan for which a Lease Enhancement
Policy has been obtained, to the extent permitted in the Mortgage Loan Documents
in the event of a condemnation which results in a partial abatement of rent by
the related Borrower, periodic payments (but not lump sum payments) from the
Lease Enhancement Policy shall be made to the lock-box account related to such
Credit Lease Loan, and the Servicer shall apply such amounts to the next Monthly
Payment.
(q) With respect to any Credit Lease Loan as to which the insurer under the
related casualty and condemnation lease enhancement insurance policy has invoked
the arbitration provision under such policy with respect to any payment
thereunder, the Servicer or Special Servicer, with respect to Specially Serviced
Mortgage Loans, shall hold any payment required to be made by such insurer
pending the outcome of such arbitration in a segregated account (the "Credit
Lease Insurance Arbitration Account", which shall be an Eligible Account, and
shall make a P&I Advance (subject to a nonrecoverability determination) with
respect to the amount of such payment. Upon the final resolution of such
arbitration, (a) if favorable to the Trust Fund, amounts in the Credit Lease
Insurance Arbitration Account shall, together with interest earned thereon, be
remitted to the Servicer and, (b) if favorable to the insurer (an "Adverse
Resolution"), shall be remitted to the insurer for payment in accordance with
the determination of the arbitration panel. To the extent of any such Adverse
Resolution, and to the extent there are not other sources of recovery, (a) P&I
Advances made pursuant to this Section 3.28(q) shall be deemed Nonrecoverable
Advances, and (b) the amount of any such award to the insurer shall be allocated
as a Realized Loss as provided in this Agreement.
(r) Without limiting the obligations of the Servicer hereunder with respect
to the enforcement of a Borrower's obligations under the related Mortgage Loan
Documents, the Servicer agrees that it shall enforce the provisions of the
Mortgage Loan Documents with respect to the collection of Prepayment Premiums.
(s) In the event that a Rating Agency shall charge a fee in connection with
providing confirmation hereunder that a proposed action will not result in the
downgrade, withdrawal, or qualification of any rating assigned to any Class of
Certificates, the Servicer shall require the related Borrower to pay such fee to
the full extent permitted under the applicable Mortgage Loan Documents.
(t) The Servicer shall convene dial-in conference calls on a quarterly
basis for the purpose of providing investors in the Certificates with an
opportunity to discuss pool and loan performance issues, beginning in October
1998.
(u) To the extent not inconsistent with the related Mortgage Loan, neither
the Servicer nor the Special Servicer shall consent to a replacement of the
related property manager with respect to a Mortgaged Property unless it obtains
written confirmation from Fitch, DCR, 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 provided, however, that if the
Stated Principal Balance of such Mortgage Loan is less than the lesser of (x) 2%
of the total aggregate Stated Principal Balances of the Mortgage Loans and (y)
$30,000,000, and is not one of the ten largest Mortgage Loans in the Trust Fund,
such written confirmation shall not be required from DCR.
(v) To the extent not inconsistent with the related Mortgage Loan, neither
the Servicer nor the Special Servicer shall consent to a transfer of ownership
interest in any Borrower or beneficial owner of Borrower with respect to a
Mortgaged Property unless it obtains written confirmation from Fitch, DCR, 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, provided, however, that if the Stated Principal Balance of
such Mortgage Loan is less than the lesser of (x) 2% of the total aggregate
Stated Principal Balances of the Mortgage Loans and (y) $30,000,000, and is not
one of the ten largest Mortgage Loans in the Trust Fund, such written
confirmation shall not be required from any of the Rating Agencies.
(w) To the extent not inconsistent with the related Mortgage Loan, the
Servicer shall maintain all reserve accounts and cash collateral accounts as
Eligible Accounts and shall invest funds in such accounts in Permitted
Investments.
(x) To the extent not inconsistent with the related Mortgage Loan, the
Servicer shall, as a condition to granting consent to any material alteration of
a Mortgaged Property require any such Borrower to post cash security in the
amount of 125% of the projected cost of such alteration, provided, however, that
if the Stated Principal Balance of such Mortgage Loan is less than the lesser of
(x) 2% of the total aggregate Stated Principal Balances of the Mortgage Loans
and (y) $30,000,000, and is not one of the ten largest Mortgage Loans in the
Trust Fund, such deposit shall not be required. A material alteration shall be
an alteration where the projected cost of such alteration exceeds 5% of the
Stated Principal Balance of such Mortgage Loan.
(y) No more than 90 days prior to the Maturity Date with respect to the
Mortgage Loan identified as the Research Park loan (the "Research Park Loan"),
the Servicer shall request written confirmation from the related Borrower as to
whether such Borrower intends to pay the outstanding principal balance of the
Research Park Loan on its Maturity Date. The Servicer shall promptly provide a
copy of the related Borrower's response to such request to the Special Servicer.
In the event the Borrower fails to respond to such inquiry, or responds that it
does not intend to pay the outstanding principal balance of the Research Park
Loan, such loan shall be deemed a Specially Serviced Mortgage Loan and the
servicing of such loan shall be transferred to the Special Servicer. If after
receipt of a response from such Borrower, the Special Servicer determines that a
default on the related Maturity Date is reasonably foreseeable, the Special
Servicer shall notify the Borrower thereunder that the Special Servicer would
agree to extend the Maturity Date of the Research Park Loan until the Due Date
that is at least 360 months from the date of the origination of such Loan if
such Borrower agrees that the terms of the Research Park Loan shall be modified
to provide for terms substantially similar to those provided for in Mortgage
Loans for which there is an Anticipated Repayment Date (including the payment of
Excess Interest, at a rate not to exceed the related Default Rate, and
application of excess cash flow from the Mortgaged Property to prepay the
Research Park Loan).
(z) Pursuant to the provisions of any Mortgage Loan which provides for the
removal of a property manager, any calculation of Debt Service Coverage Ratio by
the Servicer shall use the Mortgage Rate, and not the Revised Mortgage Rate,
regardless of the rate in effect at the time of such calculation.
(aa)The Servicer shall not remove any property manager solely because any
Mortgage Loan has reached its Anticipated Repayment Date and there remains an
outstanding principal balance on such Mortgage Loan.
(bb)With respect to the Mortgage Loan known as Bristol I, the Servicer
shall not exercise discretion with respect to any request for substitution
pursuant to Section 2.4.4 of the related Loan Agreement. The Borrower shall not
be permitted to substitute any of the Mortgaged Properties unless the conditions
to such substitution set forth in Sections 2.4.1 and 3.2 of the related Loan
Agreement have been satisfied and the Servicer receives written confirmation
from Fitch, DCR, S&P and Moody's that such substitution would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates. The Borrower shall be permitted to so
substitute provided that such conditions are met and that the Servicer receives
such written confirmation. Prior to the occurrence of any such substitution, the
Servicer shall first provide to the Special Servicer a copy of all materials
provided by such borrower to evidence that related conditions have been met, and
then provide the Special Servicer an opportunity during a four Business Day
period prior to any such substitution to confer with them as to whether
applicable conditions have been met (it being understood that the Servicer shall
not have any obligation to follow any instructions or directions given to them
by the Special Servicer with respect thereto).
SECTION 3.29. Intentionally left Blank.
SECTION 3.30. Modification, Waiver, Amendment and Consents.
(a) The Special Servicer may, consistent with the Servicing Standard, agree
to the modification, waiver or amendment of any term of a Mortgage Loan in
accordance with this Section 3.30.
(b) The Special Servicer may, consistent with the Servicing Standard, agree
to any modification, waiver or amendment of any term of, forgive or defer
interest on and principal of, and/or add collateral for, any Mortgage Loan with
the consent of Certificateholders representing 100% of the Percentage Interests
of the most subordinate Class of Certificates then outstanding determined as
provided below, subject, however, to each of the following limitations,
conditions and restrictions:
(i) a material default on such Mortgage Loan has occurred or, in the
Special Servicer's reasonable and good faith judgment, a default
in respect of payment on such Mortgage Loan is reasonably
foreseeable, and such modification, waiver, amendment or other
action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable
to Certificateholders will be done at the related Mortgage Rate),
than would liquidation;
(ii) the Special Servicer shall not extend the date on which any
Balloon Payment is scheduled to be due on any Specially Serviced
Mortgage Loan except as provided for below;
(iii) no reduction of any scheduled monthly payment of principal and/or
interest on any Specially Serviced Mortgage Loan may result in a
debt service coverage ratio for such Mortgage Loan of greater than
1.10 to 1, and the Special Servicer may only agree to reductions
lasting a period of no more than twelve consecutive months and, in
the aggregate, no more than three consecutive reductions of
twelve-months or less each;
(iv) the Special Servicer shall not release or substitute material
collateral or release mortgagors or guarantors except as provided
in clause (v) below;
(v) the Special Servicer may only allow a release of Mortgaged
Properties through defeasance or the assumption of a Borrower's
obligations with respect to a Mortgage Loan in accordance with the
terms thereof and the provisions of Section 3.09 hereof;
(vi) the Special Servicer may not forgive an aggregate amount of
principal of the Mortgage Loans in excess of the Certificate
Balance of the most subordinate Class of Certificates then
outstanding (as determined as provided below) minus the aggregate
of the greater of (A) any Appraisal Reduction Amounts and (B)
Delinquency Reduction Amounts of each Mortgage Loan that, in each
case, have not resulted in a Realized Loss;
(vii) the Special Servicer shall not permit any Borrower to add any
collateral unless (A) the Special Servicer has first determined in
accordance with the Servicing Standard, based upon an
environmental assessment prepared by an Independent Person who
regularly conducts environmental assessments, at the expense of
the Borrower, that such additional collateral is in compliance
with applicable environmental laws and regulations and that there
are no circumstances or conditions present with respect to such
new collateral relating to the use, management or disposal of any
hazardous materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any
then applicable environmental laws and/or regulations and (B) the
Special Servicer has received an Opinion of Counsel at the expense
of the Special Servicer or the Borrower (unless the Special
Servicer owns the most subordinate Class of Certificates in which
case, at the expense of the Trust Fund), to the effect that the
addition of such collateral will not cause either the Upper-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
cause a tax to be imposed on the Trust Fund under the REMIC
Provisions; and
(viii) the Special Servicer may waive or reduce a Lock-out Period or any
Prepayment Premiums only if the commencement of a foreclosure
proceeding with respect to the related Mortgage Loan is imminent
and the Special Servicer first receives written notification from
the Servicer that such action in the opinion of the Servicer,
consistent with the Servicing Standard and based solely upon
information furnished by the Special Servicer without independent
investigation by the Servicer thereof, is more likely to result in
a greater recovery, on a present value basis, than would a
foreclosure.
Notwithstanding the foregoing, the Special Servicer shall not be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Borrower if in its reasonable and good faith judgment such
opposition would not (i) ultimately prevent the confirmation of such plan or one
substantially similar and (ii) produce a greater recovery to Certificateholders
on a present value basis.
For purposes of determining the amount of principal which the Special
Servicer may forgive pursuant to clause (vi) above, the most subordinate Class
shall include the next subordinate Class provided that Certificateholders
evidencing 100% of the Percentage Interests of such Class consent to such
forgiveness.
(c) Following a default by a Borrower in the payment of a Balloon Payment
on the related Maturity Date, or if the Special Servicer reasonably determines
that a default with respect to such Balloon Loan is imminent, the Special
Servicer may elect to grant a one-year extension of such Balloon Loan; provided
that the Special Servicer may only extend such Balloon Loan if (i) immediately
prior to the default on the Balloon Payment the related Borrower had made twelve
consecutive Monthly Payments on or prior to their Due Dates, (ii) the Special
Servicer determines in its reasonable judgment that such Borrower has attempted
in good faith to refinance such Balloon Loan or Mortgaged Property, (iii) the
Special Servicer determines that (A) extension of such Balloon Loan is
consistent with the Servicing Standard and (B) extension of such Mortgage Loan
is likely to result in a recovery which on a net present value basis would be
greater than the recovery that would result from a foreclosure, (iv) such
extension requires that all cash flow on all related Mortgaged Property or
Properties in excess of amounts required to operate and maintain such Mortgaged
Property or Properties be applied to payments of principal and interest on such
Balloon Loan and (v) the Special Servicer terminates the related Manager unless
the Special Servicer determines that retaining such Manager is conducive to
maintaining the value of the related Mortgaged Properties; provided, further,
the Special Servicer shall provide notice to the Trustee (and the Trustee hereby
agrees to forward such notice immediately upon receipt to each
Certificateholder) that the Special Servicer has elected to extend the Balloon
Loan and submit a case to the Servicer (an "Extension Case") and if (A) the
Servicer, based on such Extension Case but without any independent investigation
thereof, concurs with such Extension Case but Holders of Certificates evidencing
at least 66-2/3% of the Percentage Interests of each Class of Certificates
entitled to vote direct the Special Servicer not to extend or (B) the Servicer,
based on such Extension Case and without any independent investigation thereof,
does not concur with such Extension Case and Holders of Certificates evidencing
greater than (x) 50% of the aggregate Voting Rights of all Certificateholders
entitled to vote and (y) 66-2/3% of the aggregate Voting Rights of all
Certificateholders entitled to vote who respond to such notice within 30 days,
direct the Special Servicer not to extend, then the Special Servicer shall not
extend.
The Special Servicer may, consistent with the Servicing Standard, grant
subsequent one-year extensions of such Balloon Loan if (i) the related Borrower
has made twelve consecutive Monthly Payments in an amount equal to or greater
than the Minimum Defaulted Monthly Payments, (ii) the requirements set forth in
clauses (ii) - (iv) of the preceding paragraph are satisfied; provided, however,
the Special Servicer shall provide notice to the Trustee (and the Trustee hereby
agrees to forward such notice immediately upon receipt to each
Certificateholder) that the Special Servicer has elected to extend the Balloon
Loan and submit an Extension Case to the Servicer and if (A) the Servicer, based
on such Extension Case but without any independent investigation thereof,
concurs with such Extension Case but Holders of Certificates evidencing at least
66-2/3% of the Percentage Interests of each Class of Certificates entitled to
vote direct the Special Servicer not to extend or (B) the Servicer, based on
such Extension Case and without any independent investigation thereof, does not
concur with such Extension Case and Holders of Certificates evidencing greater
than (x) 50% of the aggregate Voting Rights of all Certificateholders entitled
to vote and (y) 66-2/3% of the aggregate Voting Rights of all Certificateholders
entitled to vote who respond to such notice within 30 Business Days, direct the
Special Servicer not to extend, then the Special Servicer shall not extend. The
holders of the Class A-CS1 and Class PS-1 Certificates will not be entitled to
vote with respect to proposed extensions of a Specially Serviced Mortgage Loan.
If the related Borrower fails to make a timely Minimum Defaulted Monthly Payment
more than once during any two year period after an extension of a Balloon Loan,
no further extensions will be granted.
During the 30-day period after notice of a proposed extension of a Balloon
Loan has been given, each of the Servicer and Special Servicer shall be
permitted to communicate with the Certificateholders regarding its respective
position with respect to such extension. Notwithstanding the foregoing, the
Special Servicer shall not agree to any extension of a Mortgage Loan beyond the
earlier of two years prior to the Rated Final Distribution Date or past the date
which is ten years prior to the expiration of any related ground lease.
Notwithstanding the foregoing, the Special Servicer may extend a defaulted
payment due on the Maturity Date of a Balloon Loan and grant subsequent
extensions pursuant to the Instructions of the Directing Holders (as described
in paragraphs (d) and (e) below). The Servicer shall within five Business Days
after receipt of an Extension Case from the Special Servicer, give the Special
Servicer written notice as to whether or not it concurs with the extension set
forth in such Extension Case. The Special Servicer shall provide the necessary
information and back-up material for the Servicer to determine whether it would
extend prior to sending any such notice to the Trustee. The Special Servicer
will notify the Servicer of any Mortgage Loan with respect to which the Borrower
has indicated in writing an intent to request an extension.
The Holders of the Class A-CS1 and Class PS-1 Certificates shall not be
entitled to vote with respect to proposed extensions of a Balloon Loan.
Any extension of a Balloon Loan pursuant to this Section will require
monthly payments in an amount equal to or greater than the Minimum Defaulted
Monthly Payment.
(d) The Special Servicer may be given revocable instructions
("Instructions") (with a copy to the Servicer) to extend a Specially Serviced
Mortgage Loan that has defaulted on a Balloon Payment (which extension shall be
conditioned on the requirements of clauses (ii)-(iv) of Section 3.30(c) above
except that such Instructions shall not be subject to the rejection of the other
Certificateholders and the related Borrower will not be required to have made
twelve consecutive Monthly Payments on or prior to the Due Date) by the Holders
of Certificates representing greater than 50% of the Voting Rights of the most
subordinate Class or Classes of Certificates then outstanding representing a
minimum of 1.0% of the aggregate initial Certificate Balances of all Classes of
Certificates (or if the Certificate Balance of such Class or Classes has been
reduced to less than 40% of its initial Certificate Balance, the holders of such
Class together with the Holders of the next most subordinate Class) (the
"Directing Holders") under the following circumstance and subject to the
requirements of paragraph (e):
(i) If the Special Servicer has determined to commence foreclosure or
acquisition proceedings, the Special Servicer shall notify the
Trustee (and the Trustee hereby agrees to notify Directing
Holders), the Depositor and the Servicer of its proposed action;
(ii) If the Special Servicer receives contrary Instructions from the
Directing Holders within seven days after notice was given to the
Directing Holders (and the Trustee hereby agrees to forward to the
Special Servicer promptly any Instructions provided by the
Directing Holders), the Special Servicer will delay such
proceedings, and the procedures described below shall apply to the
servicing of such Mortgage Loan; and
(iii) In the event that the Special Servicer does not receive such
Instructions within such seven-day period, the Special Servicer
may proceed in connection with the foreclosure or acquisition in a
manner consistent with the Servicing Standard.
If the Directing Holders revoke their Instructions to extend the Mortgage Loan,
the Special Servicer shall service the Mortgage Loan without regard to such
original Instructions; provided, however, that the Directing Holders shall be
required to maintain the Collateral Account in accordance with this Section 3.30
unless and until the Mortgage Loan is no longer a Specially Serviced Mortgage
Loan for nine consecutive months or has been liquidated; and provided, further,
that any such foreclosure shall be subject to the provisions of Section 3.10.
(e) If the Special Servicer receives Instructions and the Servicer has not
otherwise been required to obtain an Updated Appraisal as described in Section
3.10 above within the preceding twelve month period, the Special Servicer shall
notify the Servicer and the Servicer shall as soon as reasonably practicable
obtain an Updated Appraisal of the Mortgaged Property (the cost of which shall
be paid by the Servicer as a Property Advance), in order to determine the fair
market value of such Mortgaged Property, after accounting for the estimated
liquidation and carrying costs (the "Fair Market Value" of such Mortgaged
Property). Within two Business Days after the Special Servicer's receipt of
Instructions, the Servicer shall establish a segregated account (the "Collateral
Account") and the Directing Holders shall deposit therein (at the Servicer's
request), in proportion to their respective Percentage Interests, an amount
equal to the lesser of (i) 125% of the Fair Market Value of the related
Mortgaged Property and (ii) the outstanding principal balance of the Mortgage
Loan plus unreimbursed Advances (with interest thereon at the Advance Rate) and
unpaid accrued interest (the "Deposit"). If no Updated Appraisal has yet been
obtained, the amount of the Deposit will be determined based on the Servicer's
estimate of the Fair Market Value of the Mortgaged Property, in which case, upon
the Servicer's receipt of such Updated Appraisal, the Servicer shall remit any
excess deposit to the Directing Holders, or the Directing Holders will deposit
in the Collateral Account any shortfall, as the case may be. In the event that
the Directing Holders do not make the required deposit within two Business Days
following the Special Servicer's receipt of Instructions, the Special Servicer
shall act in accordance with the Servicing Standard without regard to such
Instructions. The Directing Holders shall be deemed to have granted to the
Servicer for the benefit of Certificateholders a first priority security
interest in the Collateral Account, as security for the obligations of the
Directing Holders.
If the Special Servicer is acting pursuant to Instructions, the Special
Servicer shall direct the Servicer to withdraw from the Collateral Account for
deposit into the Collection Account on or prior to the Business Day preceding
each Servicer Remittance Date an amount equal to the sum of (i) the Minimum
Defaulted Monthly Payment on the related Balloon Loan and (ii) any Property
Protection Expenses or any expenses incurred to protect and preserve the
security for a Mortgage Loan or taxes and assessments or insurance premiums
(without regard to a non-recoverability determination), and the Directing
Holders shall, upon request therefor by the Servicer, deposit from their own
funds into the Collateral Account the amount of such P&I Advance or Property
Advance. Such withdrawals shall be reimbursed, with interest, at the Advance
Rate (but in no event greater than the Default Rate on the related Mortgage
Loan), and shall be recoverable only from funds recovered from the related
Mortgage Loan (whether pursuant to liquidation or the Mortgage Loan being
brought current) but only after such funds have been applied to the purposes set
forth in Section 3.06(i)-(x). If the Directing Holders fail to make such deposit
within one (1) Business Day after receipt of the Servicer's request, the Special
Servicer shall no longer be required to follow such Instructions and shall
specially service such Mortgage Loan as though no Instructions had been given;
provided, however, that the Directing Holders shall be required to maintain the
Collateral Account in accordance with the requirements of this Section 3.30
unless and until the related Mortgage Loan is no longer a Specially Serviced
Mortgage Loan for nine consecutive months or has been liquidated. The Servicer
shall invest amounts on deposit in the Collateral Account in Permitted
Investments upon direction by the Directing Holders. Directing Holders shall be
entitled to reinvestment income as received, and will reimburse the Collateral
Account for any losses incurred. Any Collateral Account established hereunder
will be an "outside reserve fund" beneficially owned by the related Directing
Holders for federal income tax purposes, and any amounts paid or reimbursed from
the Upper-Tier REMIC or Lower-Tier REMIC to the Collateral Account will be
treated as paid to the Directing Holders as beneficial owners.
(f) If a Balloon Loan or the related Mortgaged Property which is subject to
Instructions is liquidated or disposed of, all Net Liquidation Proceeds shall be
deposited in the Collection Account and the Servicer shall withdraw from the
Collateral Account, and deposit into the Collection Account as additional
Liquidation Proceeds for distribution to Certificateholders the lesser of (a)
the amount by which 125% of the Fair Market Value (determined at the time of the
Deposit) (plus accrued and unpaid interest, accumulated carrying costs and
conveyance expenses) exceeds the net sales proceeds, and (b) the amount by which
the outstanding principal balance of the related Mortgage Loan plus unreimbursed
Advances (with interest thereon) and unpaid accrued interest exceeds the net
sales proceeds, provided that in no event shall such additional Liquidation
Proceeds exceed the unpaid principal balance, accrued and unpaid interest
(including Default Interest), unreimbursed Advances made by the Servicer,
Special Servicer, Trustee or Fiscal Agent and interest thereon, and any expenses
paid by the Trust Fund with respect to such Mortgage Loan.
If the amount realized upon disposition of the Mortgage Loan or Mortgaged
Property exceeds 125% of the Fair Market Value, the Servicer shall deposit the
excess in the Collection Account to the extent not required by applicable law to
be paid to the related Borrower. If the Mortgage Loan has not been sold,
liquidated or disposed of on or before the third anniversary of the Instructions
(or such earlier date so that the Trust Fund owns the Mortgaged Property for no
longer than the period permitted by Section 3.17(a)), the Directing Holders
shall immediately purchase the Mortgage Loan for a purchase price equal to Fair
Market Value (determined at the time of the Deposit) plus accrued and unpaid
interest, accumulated carrying costs and conveyance expenses and, in connection
therewith, amounts then on deposit in the Collateral Account shall be applied
first in payment of such purchase price. For purposes of this paragraph, if the
Updated Appraisal is dated more than twelve months prior to the date on which
such purchase is to occur, then the Servicer shall obtain an Updated Appraisal
upon which the calculation of Fair Market Value shall be based and the term
"Fair Market Value" for purposes of the purchase price and the first paragraph
of this section (f) shall be the greater of (i) the Fair Market Value calculated
at the time the Instructions were first given and (ii) the Fair Market Value
calculated in connection with the referenced Updated Appraisal, provided that in
no event shall such price exceed the unpaid principal balance, accrued interest
(including Default Interest), unreimbursed Advances made by the Servicer,
Special Servicer, Trustee or Fiscal Agent, and interest thereon and expenses
paid by the Trust Fund with respect to such Mortgage Loan.
If at any time following the establishment of a Collateral Account and
prior to the disposition of the Specially Serviced Mortgage Loan or Mortgaged
Property, the Mortgaged Property suffers a hazard loss that results in the
Mortgaged Property not being rebuilt and payments to the Trustee are made under
the related hazard insurance policy, the Servicer shall pay all amounts on
deposit in the Collateral Account to the Directing Holders. In addition, after
amounts required to be deposited in the Collection Account as set forth above
have been withdrawn from the Collateral Account following foreclosure,
liquidation, disposition, purchase by Directing Holders, or if the related
Mortgage Loan is no longer a Specially Serviced Mortgage Loan for nine
consecutive months, any remaining amounts in the Collateral Account shall be
released to the Directing Holders.
(g) Until the disposition of the Specially Serviced Mortgage Loan or
Mortgaged Property as to which Directing Holders have provided Instructions or
the cure of such default, no P&I Advances shall be made in respect of amounts
otherwise distributable to the Class of the Directing Holders in respect of such
Mortgage Loan. The Trustee shall notify the Servicer at least one Business Day
prior to the Servicer Remittance Date of the amount of scheduled distributions
otherwise due to the Class of Certificates held by the Directing Holders on the
related Distribution Date.
(h) The Special Servicer shall provide copies of any modifications or
extensions to each Rating Agency. All modifications, waivers, amendments and
other actions entered into or taken in respect of the Mortgage Loans pursuant to
this Section 3.30 shall be in writing. The Special Servicer shall notify the
Servicer and the Trustee, in writing, of any modification, waiver, amendment or
other action entered into or taken in respect of any Mortgage Loan pursuant to
this Section 3.30, prior to the effective date thereof and the date as of which
the related modification, waiver or amendment is to take effect, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the Servicer) an original counterpart of the
agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within 10 Business Days) following the execution
thereof. Following the execution of any modification, waiver or amendment agreed
to by the Special Servicer pursuant to clauses (a) and (b)(i) above, the Special
Servicer shall deliver to the Trustee (with a copy to the Servicer) an Officer's
Certificate setting forth in reasonable detail the basis of the determination
made by it pursuant to clause (a) and (b)(i) above.
(i) If a modification, waiver or amendment results, in and of itself, in
the withdrawal, downgrade or qualification of any of the then-current ratings
assigned to any Class of Certificates (not including the Class of Certificates,
if any, that consented to such actions), then the Special Servicer shall be
terminated and shall be replaced pursuant to Section 7.02.
(j) Any payment of interest which is deferred as described herein shall
not, for purposes, including, without limitation, of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit or that such interest may actually be capitalized.
(k) 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
determined by the Servicer or Special Servicer (and the Servicer or Special
Servicer may rely on an Opinion of Counsel in making such determination), (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 either 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.
Prior to waiving any "due on sale" clause, taking or entering into any
assumption agreement or permitting the release of a Borrower and substitution of
a new Borrower with respect to any Mortgage Loan, the Servicer shall, unless
otherwise agreed by the Servicer and Special Servicer, first provide to the
Special Servicer a copy of its recommendation and the materials upon which such
recommendation is based and then provide the Special Servicer an opportunity
during a four Business Day period prior to taking any such action to confer with
them as to advisability of such action (it being understood that the Servicer
shall not have any obligation to follow any instructions or directions given to
them by the Special Servicer with respect to such actions).
<PAGE>
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall pay to itself from the
Distribution Account the Trustee Fee, and the remaining amounts held in the
Distribution Account shall be withdrawn (to the extent of Available Funds) and
distributed in respect of the Lower-Tier Regular Interests as follows:
(i) The amounts and timing of principal and interest payments and
Prepayment Interest Shortfall allocations on each Lower-Tier REMIC
Regular Interest will be identical to such amounts and timing on
the corresponding Class of Related Certificates for such
Distribution Date, except that, solely for this purpose, (A)
principal will be distributed on the Class A-1A1-L Interest in the
amount and at the time the corresponding amount of principal is
distributed on the Class A-1A Certificates pursuant to the
definition of Class A-1A Component 1 Balance, and (B) all
calculations with respect to the Related Lower-Tier Regular
Interests shall be made as though (x) the Class A-1A, Class A-1B,
Class A-1C, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, and Class B-6
Pass-Through Rates were equal to the Weighted Average Net Mortgage
Pass-Through Rate, (y) the Class PS-1 and Class A-CS1 Notional
Balances were zero at all times, and (z) any Reduction Interest
Shortfall allocated to, or any restoration of amounts
corresponding to such Reduction Interest Shortfall distributed on,
the Class PS-1 Certificates on such Distribution Date based on
notional reductions to the Certificate Balance of a Related
Certificate were allocated to or distributed on, as the case may
be, the Lower-Tier Regular Interest that corresponds to such
Related Certificate.
(ii) Prepayment Premiums shall be distributed in respect of the
Lower-Tier Regular Interests in accordance with Section
4.01(c)(ii).
(iii) Realized Losses shall be allocated to, and shall reduce the
Certificate Balances of, each Class of Lower-Tier Regular
Interests without distribution on any Distribution Date, to the
extent that the Certificate Balance of such Class exceeds the
Certificate Balance of the corresponding Related Certificates
because of Realized Losses allocated to such Related Certificates;
provided that Realized Losses allocable to the Class A-1A
Certificates shall be allocated pro rata between the Class A-1A1-L
and Class A-1A2-L Interests based on their Certificate Balances.
Amounts recovered in respect of any amounts previously written off
as Realized Losses will be distributed to the Related Lower-Tier
Regular Interests, to the extent that amounts recovered in respect
of any amounts previously written off as Realized Losses are
distributed to the corresponding Related Certificates, and to the
Class A-1A1-L and Class A-1A2-L Interests pro rata based on
Realized Losses previously allocated in reduction of the
Certificate Balances of such Lower-Tier Regular Interests.
(iv) Any amounts remaining in the Distribution Account after the
distribution set forth above in this Section 4.01(a)(i)-(iii)
shall be distributed to the Class LR Certificates.
(b) On each Distribution Date, amounts distributed on the Lower-Tier
Regular Interests pursuant to Section 4.01(a) shall be deposited in the
Upper-Tier Distribution Account, and Holders of each Class of Certificates
(other than the Class LR Certificates) shall receive distributions from amounts
on deposit in the Upper-Tier Distribution Account in respect of interest and
principal, subject to Section 4.01(h), 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 A-CS1 and Class PS-1
Certificates, up to an amount equal to the aggregate Class
Interest Distribution Amounts of such Classes;
(ii) Second, pro rata, to the Class A-1A, Class A-1B, Class A-1C,
Class A-CS1 and Class PS-1 Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such
Classes;
(iii) Third, prior to the Crossover Date, to the Class A-1A
Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution
Amount until the Certificate Balance thereof is reduced to
zero;
(iv) Fourth, prior to the Crossover Date, to the Class A-1B
Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(v) Fifth, prior to the Crossover Date, to the Class A-1C
Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(vi) Sixth, to the Class A-2 Certificates in respect of interest,
up to an amount equal to the Class Interest Distribution
Amount of such Class;
(vii) Seventh, pro rata, (A) to the Class A-2 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
A-2 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(viii) Eighth, 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 of such Class is
reduced to zero;
(ix) Ninth, to the Class A-2 Certificates, to the extent not
distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(x) Tenth, to the Class A-3 Certificates in respect of interest,
up to an amount equal to the Class Interest Distribution
Amount of such Class;
(xi) Eleventh, pro rata, (A) to the Class A-3 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
A-3 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xii) Twelfth, 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 of such Class
is reduced to zero;
(xiii) Thirteenth, to the Class A-3 Certificates, to the extent not
distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, up to an
amount equal to the aggregate of such unreimbursed Realized
Losses previously allocated to such Class;
(xiv) Fourteenth, to the Class A-4 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xv) Fifteenth, pro rata, (A) to the Class A-4 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
A-4 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xvi) Sixteenth, to the Class A-4 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(xvii) Seventeenth, to the Class A-4 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xviii) Eighteenth, to the Class A-5 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xix) Nineteenth, pro rata, (A) to the Class A-5 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
A-5 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xx) Twentieth, 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 of such Class
is reduced to zero;
(xxi) Twenty-first, to the Class A-5 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxii) Twenty-second, to the Class B-1 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xxiii) Twenty-third, pro rata, (A) to the Class B-1 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
B-1 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xxiv) Twenty-fourth, to the Class B-1 Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(xxv) Twenty-fifth, to the Class B-1 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxvi) Twenty-sixth, to the Class B-2 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xxvii) Twenty-seventh, pro rata, (A) to the Class B-2 Certificates
in respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
B-2 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xxviii) Twenty-eighth, to the Class B-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 of such Class is
reduced to zero;
(xxix) Twenty-ninth, to the Class B-2 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxx) Thirtieth, to the Class B-3 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xxxi) Thirty-first, pro rata, (A) to the Class B-3 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
B-3 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xxxii) Thirty-second, to the Class B-3 Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(xxxiii) Thirty-third, to the Class B-3 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxxiv) Thirty-fourth, to the Class B-4 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xxxv) Thirty-fifth, (A) to the Class B-4 Certificates in respect
of interest, up to an amount equal to the unpaid Class
Interest Shortfalls previously allocated to such Class, (B)
to the Class PS-1 Certificates in respect of the Reduction
Interest Distribution Amount attributable to the notional
reduction in the Certificate Balance of the Class B-4
Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xxxvi) Thirty-sixth, to the Class B-4 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(xxxvii) Thirty-seventh, to the Class B-4 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xxxviii) Thirty-eighth, to the Class B-5 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xxxix) Thirty-ninth, pro rata, (A) to the Class B-5 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
B-5 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xl) Fortieth, to the Class B-5 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(xli) Forty-first, to the Class B-5 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xlii) Forty-second, to the Class B-6 Certificates in respect of
interest, up to an amount equal to the Class Interest
Distribution Amount of such Class;
(xliii) Forty-third, pro rata, (A) to the Class B-6 Certificates in
respect of interest, up to an amount equal to the unpaid
Class Interest Shortfalls previously allocated to such
Class, (B) to the Class PS-1 Certificates in respect of the
Reduction Interest Distribution Amount attributable to the
notional reduction in the Certificate Balance of the Class
B-6 Certificates pursuant to Section 4.01(i) up to an amount
equal to the Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to
an amount equal to the unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificates in
respect of Reduction Interest Distribution Amounts under
Clause (B);
(xliv) Forty-fourth, to the Class B-6 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is
reduced to zero;
(xlv) Forty-fifth, to the Class B-6 Certificates, to the extent
not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount
equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class;
(xlvi) Forty-sixth, pro rata, (A) to the Class PS-1 Certificates in
respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate
Balance of the Class B-7 and Class B-7H Certificates up to
an amount equal to the Reduction Interest Distribution
Amount so attributable and (B) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution
Amounts distributable under Clause (A);
(xlvii) Forty-seventh, pro rata, to the Class B-7 and Class B-7H
Certificates in respect of interest, up to an amount equal
to the aggregate Class Interest Distribution Amounts of such
classes;
(xlviii) Forty-eighth, pro rata, to the Class B-7 and Class B-7H
Certificates in respect of interest, up to an amount equal
to the aggregate unpaid Class Interest Shortfalls previously
allocated to such classes;
(xlix) Forty-ninth, pro rata, based on Certificate Balance to the
Class B-7 and Class B-7H Certificates in reduction of the
Certificate Balances thereof, an amount equal to the
Principal Distribution Amount less amounts of the Principal
Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of each such class is
reduced to zero;
(l) Fiftieth, pro rata, to the Class B-7 and Class B-7H
Certificates, to the extent not distributed pursuant to all
prior clauses, for the unreimbursed amounts of Realized
Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such
classes; and
(li) Fifty-first, to the Class R Certificates.
On each Distribution Date, amounts received on a Mortgage Loan that
represent recoveries of Subordinate Class Advance Amounts shall be allocated by
the Trustee to the Class of Certificates and the Related Lower-Tier Regular
Interest that advanced the related Subordinate Class Advance Amount in respect
of the distributions to which such Class of Certificates and Related Lower-Tier
Regular Interest were entitled on the Distribution Date on which such
distributions were reduced by such Subordinate Class Advance Amount. Amounts
allocated with respect to interest shall be applied to any related unpaid Class
Interest Shortfalls. On each Distribution Date, the Paying Agent shall
distribute such recoveries of Subordinate Class Advance Amounts allocated to the
related Class of Certificates and Related Lower-Tier Regular Interest pursuant
to this paragraph to such Class and Related Lower-Tier Regular Interest.
All references to pro rata in the preceding clauses with respect to
interest and Class Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (i) On each Distribution Date, following the distribution from the
Distribution Account in respect of the Lower-Tier Regular Interests pursuant to
Section 4.01(c)(ii), the Paying Agent shall make distributions of any Prepayment
Premiums with respect to any Principal Prepayments received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(c) in the following amounts (as additional payments and
not as payments of interest and principal due thereunder) and order of priority,
with respect to the Certificates of each Class in each case to the extent
remaining amounts of Prepayment Premiums are available therefor:
(I) First, to the Class A-CS1 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate (as defined below)
for the Class A-CS1 Certificates plus the Spread Rate (as defined
below) for the Class A-CS1 Certificates) of the aggregate interest
that would have been paid in respect of the Class A-CS1
Certificates from the Distribution Date occurring in the following
month until the Notional Balance of the Class A-CS1 Certificates
would have been reduced to zero had the related prepayment not
occurred, minus (B) the present value (discounted at the Discount
Rate for the Class A-CS1 Certificates plus the Spread Rate for the
Class A-CS1 Certificates) of the aggregate interest that will be
paid in respect of Class A-CS1 Certificates from the Distribution
Date occurring in the following month until the Notional Balance
of the Class A-CS1 Certificates is reduced to zero following such
prepayment (assuming no further prepayments are made except that
all Mortgage Loans prepay on Anticipated Repayment Dates where
applicable);
(II) Second, to the Class PS-1 Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class PS-1
Certificates plus the Spread Rate for the Class PS-1 Certificates)
of the aggregate interest that would have been paid in respect of
the Class PS-1 Certificates from the Distribution Date occurring
in the following month until the Notional Balance of the Class
PS-1 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 PS-1 Certificates plus the
Spread Rate for the Class PS-1 Certificates) of the aggregate
interest that will be paid in respect of Class PS-1 Certificates
from the Distribution Date occurring in the following month until
the Notional Balance of the Class PS-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);
(III) Third, to the Class A-1A Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1A
Certificates plus the Spread Rate for the Class A-1A Certificates)
of the aggregate principal and interest that would have been paid
in respect of the Class A-1A Certificates from the Distribution
Date occurring in the following month until the Certificate
Balance of the Class A-1A Certificates would have been reduced to
zero had the related prepayment not occurred, minus the sum of (B)
the amount of such prepayment distributed in respect of the Class
A-1A Certificates and (C) the present value (discounted at the
Discount Rate for the Class A-1A Certificates plus the Spread Rate
for the Class A-1A Certificates) of the aggregate principal and
interest that will be paid in respect of the Class A-1A
Certificates from the Distribution Date occurring in the following
month until the Certificate Balance of the Class A-1A Certificates
is reduced to zero following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans prepay on
Anticipated Repayment Dates where applicable);
(IV) Fourth, to the Class A-1B Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1B
Certificates plus the Spread Rate for the Class A-1B Certificates)
of the aggregate principal and interest that would have been paid
in respect of the Class A-1B Certificates from the Distribution
Date occurring in the following month until the Certificate
Balance of the Class A-1B Certificates would have been reduced to
zero had the related prepayment not occurred, minus the sum of (B)
the amount of such prepayment distributed in respect of the Class
A-1B Certificates and (C) the present value (discounted at the
Discount Rate for the Class A-1B Certificates plus the Spread Rate
for the Class A-1B Certificates) of the aggregate principal and
interest that will be paid in respect of the Class A-1B
Certificates from the Distribution Date occurring in the following
month until the Certificate Balance of the Class A-1B Certificates
is reduced to zero following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans prepay on
Anticipated Repayment Dates where applicable); and
(V) Fifth, to the Class A-1C Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1C
Certificates plus the Spread Rate for the Class A-1C Certificates)
of the aggregate principal and interest that would have been paid
in respect of the Class A-1C Certificates from the Distribution
Date occurring in the following month until the Certificate
Balance of the Class A-1C Certificates would have been reduced to
zero had the related prepayment not occurred, minus the sum of (B)
the amount of such prepayment distributed in respect of the Class
A-1C Certificates and (C) the present value (discounted at the
Discount Rate for the Class A-1C Certificates plus the Spread Rate
for the Class A-1C Certificates) of the aggregate principal and
interest that will be paid in respect of the Class A-1C
Certificates from the Distribution Date occurring in the following
month until the Certificate Balance of the Class A-1C Certificates
is reduced to zero following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans prepay on
Anticipated Repayment Dates where applicable).
In all clauses above, Prepayment Premiums will only be distributed on a
Distribution Date (i) if the respective Certificate Balance or Notional Balance
of the related Class or Classes is greater than zero on the last Business Day of
the Interest Accrual Period ending immediately prior to 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) and any Post-lockout Return
of Fee Amounts shall be distributed to holders of the Class B-7H Certificates
regardless of whether the Certificate Balance thereof has been reduced to zero.
Notwithstanding the foregoing, Prepayment Premiums shall be distributed on any
Distribution Date only to the extent they are received in respect of the
Mortgage Loans in the related Collection Period.
(ii) On each Distribution Date, prior to the distributions to the
Certificates from the Upper-Tier Distribution Account pursuant to Section
4.01(c)(i), the Lower-Tier Regular Interests shall receive distributions in
respect of Prepayment Premiums in proportion to their Certificate Balances.
(d) Intentionally deleted.
(e) The Certificate Balances of each Class of Regular Certificates (other
than the Class A-CS1 and Class PS-1 Certificates) will be reduced without
distribution on any Distribution Date as a write-off to the extent of any
Realized Losses allocated to such Class with respect to such date. Any such
write-offs will be applied to Classes of Regular Certificates in the following
order, in each case until the Certificate Balance of such Class is reduced to
zero: first, to the Class B-7 Certificates and Class B-7H Certificates, pro
rata, based on their respective Certificate Balances; second to the Class B-6
Certificates; third, to the Class B-5 Certificates; fourth, to the Class B-4
Certificates, fifth, to the Class B-3 Certificates; sixth, to the Class B-2
Certificates; seventh, to the Class B-1 Certificates; eighth, to the Class A-5
Certificates; ninth, to the Class A-4 Certificates; tenth, to the Class A-3
Certificates; eleventh, to the Class A-2 Certificates; and finally, to the Class
A-1A, Class A-1B and Class A-1C Certificates, pro rata, based on their
respective Certificate Balances and pro rata as between the Class A-1A Component
1 Balance and the Class A-1A Component 2 Balance. Any amounts recovered in
respect of amounts previously written off as Realized Losses shall be
distributed to the Classes of Certificates described above in reverse order of
allocation of Realized Losses thereto. 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, or otherwise, shall
be allocated in the same manner as Realized Losses to the Certificates.
Realized Losses and such other amounts described above which are applied to
each Class of Certificates will be allocated to reduce the Certificate Balances
of the Related Lower-Tier Regular Interests and pro rata as between the Class
A-1A1-L and Class A-1A2-L Interests based on their Certificate Balances.
(f) All amounts distributable to a Class of Certificates pursuant to this
Section 4.01 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first Class mail to the address set forth therefor in
the Certificate Register or, provided that such Holder 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 Holder 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
Holders of such final distribution.
(g) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information previously
provided to it that the final distribution with respect to such
Class of Certificates will be made on such Distribution Date, but
only upon presentation and surrender of such Certificates at the
office of the Trustee therein specified, and
(B) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificates from and after such
Distribution Date;
provided, however, that the Class V-1, Class V-2, Class R and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates or Lower-Tier Regular Interests outstanding and the Class B-7H
Certificates shall be deemed to be outstanding so long as there are any Mortgage
Loans 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 such Classes of
Certificates on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust for the benefit of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section
4.01(g) shall not have been surrendered for cancellation within six months after
the time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Holders 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 Holders concerning surrender of
their Certificates. The costs and expenses of holding such funds in trust and of
contacting such Holders 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 Holder
on any amount held in trust hereunder or by the Trustee as a result of such
Holder's failure to surrender its Certificate(s) for final payment thereof in
accordance with this Section 4.01(g). Any such amounts transferred to the
Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(h) Notwithstanding any provision in this Agreement to the contrary, the
aggregate amount distributable to each Class pursuant to this Section 4.01 shall
be reduced by the aggregate amount paid to any Person pursuant to Section 6.03
or Section 8.05(b) and (d), such reduction to be allocated among such Classes
pro rata, based upon the respective amounts so distributable without taking into
account the provision of this Section 4.01(h). Such reduction of amounts
otherwise distributable to a Class shall be allocated first in respect of
interest and second in respect of principal. For purposes of determining Class
Interest Shortfalls and Certificate Balances, the amount of any such reduction
so allocated to a Class shall be deemed to have been distributed to such Class.
(i) The Certificate Balances of the Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class
B-7 Certificates shall be notionally reduced on any Distribution Date 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 with respect to the same Distribution Date and
the same Mortgage Loan, the reduction shall equal the Appraisal Reduction
Amount, (ii) following the occurrence of an Appraisal Reduction Event with
respect to any Mortgage Loan, no further Delinquency Reduction Amounts shall be
applied with respect to such Mortgage Loan and any Delinquency Reduction Amounts
previously applied shall be reversed and (iii) for any Distribution Date, the
aggregate of the Appraisal Reduction Amounts and Delinquency Reduction Amounts
shall not exceed the Certificate Balance (as adjusted by any notional
reductions) of the most subordinate Class of Certificates outstanding among the
Class B-7, Class B-6, Class B-5, Class B-4, Class B-3, Class B-2, Class B-1,
Class A-5, Class A-4, Class A-3 and Class A-2 Certificates (and to the extent
the aggregate of the Appraisal Reduction Amounts and Delinquency Reduction
Amounts exceeds such Certificate Balance, such excess shall be applied, subject
to any reversal described below, to notionally reduce the next most subordinate
Class of Certificates on the next Distribution Date). Any such reductions shall
be applied notionally, first, to the Class B-7 and Class B-7H Certificates,
second to the Class B-6 Certificates, third, to the Class B-5 Certificates,
fourth, to the Class B-4 Certificates, fifth, to the Class B-3 Certificates,
sixth, to the Class B-2 Certificates, seventh, to the Class B-1 Certificates,
eighth, to the Class A-5 Certificates, ninth to the Class A-4 Certificates,
tenth to the Class A-3 Certificates, and finally, to the Class A-2 Certificates
(provided in each case that no Certificate Balance in respect of any such class
shall be notionally reduced below zero). Any notional reduction of the
Certificate Balance of such Certificates 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. Additionally, a
reversal or additional reduction shall occur to the extent that the Servicer's
Appraisal Estimate is less than or greater than the Appraisal Reduction as
adjusted to take into account a subsequent independent MAI Appraisal. For
purposes of calculating Interest Accrual Amounts, any such reduction or reversal
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.
(j) Shortfalls in Available Funds resulting from Prepayment Interest
Shortfalls in excess of Servicer Prepayment Interest Shortfalls shall be
allocated to and be deemed distributed to, each Class of Certificates, pro rata,
based upon the Class Interest Distribution Amount (plus the aggregate Reduction
Interest Distribution Amount, in the case of the Class PS-1 Certificates)
distributable to each such Class, and shall be allocated to each Class of
Lower-Tier Regular Interests in the same manner in which interest is allocated
pursuant to Section 4.01(a)(i). Servicer Prepayment Interest Shortfalls shall be
deposited by the Servicer into the Collection Account on or prior to the
Servicer Remittance Date.
Shortfalls in Available Funds resulting from indemnification expenses
pursuant to Section 6.03 shall be allocated to each Class of Certificates, pro
rata, based on amounts distributable to each Class and shall be allocated,
first, in respect of interest and, second, in respect of principal.
Indemnification expenses which are applied to each Class of Certificates shall
be allocated to interest or principal, as applicable, on the Lower-Tier Regular
Interests in the same manner that interest and principal are allocated pursuant
to Section 4.01(a)(i).
Prepayment Interest Shortfalls in excess of Servicer Prepayment Interest
Shortfalls shall be allocated prior to the allocation of indemnification
expenses.
SECTION 4.02. Statements to Certificateholders; Reports by Trustee; Other
Information Available to the Holders and Others.
(a) On each Distribution Date, based upon the information set forth in the
Servicer Remittance Report prepared by the Servicer and the other reports
prepared by the Servicer and Special Servicer relating to such Distribution
Date, and only to the extent such information is provided to the Trustee by the
Servicer or Special Servicer, the Trustee shall prepare and forward, or shall
cause the Paying Agent to prepare and forward, by first class mail to each
Holder of a Certificate, with copies to the Depositor (and its attorneys,
Cadwalader, Wickersham & Taft, Attn.: Anna H. Glick), the Servicer, the Special
Servicer, each Underwriter, each Rating Agency and the Luxembourg Stock Exchange
(so long as the Class A-1A, Class A-1B, Class A-1C and Class A-2 Certificates
are listed on such exchange) a written report (a "Distribution Date Statement")
setting forth the following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
(other than the Class R and Class LR Certificates) applied to
reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
allocable to (A) the Interest Accrual Amount less any Prepayment
Interest Shortfalls (in excess of the Prepayment Interest
Shortfalls paid by the Servicer or indemnification expense
pursuant to Section 4.01(j)), (B) Prepayment Premiums and/or (C)
Reduction Interest Distribution Amounts;
(iii) the aggregate Certificate Balance or aggregate Notional Balance,
as the case may be, of each Class of Certificates, before and
after giving effect to the distributions made on such Distribution
Date, separately identifying any reduction in the aggregate
Certificate Balance (or, if applicable, the aggregate Notional
Balance) of each such Class due to Realized Losses and/or
additional Trust Fund expenses;
(iv) the Pass-Through Rate and the Reduction Interest Pass-Through
Rate, if any, for each Class of Certificates applicable to such
Distribution Date;
(v) the number of outstanding Mortgage Loans and the aggregate unpaid
principal balance of the Mortgage Loans at the close of business
on the related Due Date;
(vi) the number and aggregate unpaid principal balance of Mortgage
Loans (A) delinquent one Collection Period, (B) delinquent two
Collection Periods, (C) delinquent three or more Collection
Periods, (D) that are Specially Serviced Mortgage Loans that are
not delinquent, or (E) as to which foreclosure proceedings have
been commenced;
(vii) with respect to any REO Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the preceding
calendar month, the city, state, property type, latest Debt
Service Coverage Ratio, Stated Principal Balance and the unpaid
principal balance of such Mortgage Loan as of the date it became
an REO Mortgage Loan;
(viii) as to any Mortgage Loan repurchased by the Mortgage Loan Seller or
otherwise liquidated or disposed of during the related Collection
Period, (A) the Loan Number of the related Mortgage Loan and (B)
the amount of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any, received
thereon during the related Collection Period and the portion
thereof included in the Available Funds for such Distribution
Date;
(ix) with respect to any REO Property included in the Trust Fund at the
close of business on the related Due Date (A) the Loan Number of
the related Mortgage Loan, (B) the value of such REO Property
based on the most recent appraisal or valuation, and (C) the
aggregate amount of Net Income and other revenues collected by the
Special Servicer with respect to such REO Property during the
related Collection Period and the portion thereof included in the
Available Funds for such Distribution Date;
(x) with respect to any REO Property sold or otherwise disposed of
during the related Collection Period and for which a Final
Recovery Determination has been made, (A) the Loan Number of the
related Mortgage Loan, (B) the Realized Loss attributable to such
Mortgage Loan, (C) the amount of sale proceeds and other amounts,
if any, received in respect of such REO Property during the
related Collection Period and the portion thereof included in the
Available Funds for such Distribution Date and (D) the date of the
Final Recovery Determination;
(xi) Intentionally left blank;
(xii) the aggregate amount of Principal Prepayments (other than
Liquidation Proceeds and Insurance Proceeds) made during the
related Collection Period and any Prepayment Interest Shortfall in
excess of Servicer Prepayment Interest Shortfall for such
Distribution Date;
(xiii) the amount of Property Advances and P&I Advances outstanding (net
of reimbursed Advances) which have been made by the Servicer, the
Special Servicer the Trustee, or the Fiscal Agent in the aggregate
and by Mortgaged Property or Mortgage Loan, as the case may be;
(xiv) the aggregate amount of Servicing Fees and Special Servicing Fees
retained by or paid to the Servicer and the Special Servicer
during the related Collection Period;
(xv) the amount of any Appraisal Reduction Amounts allocated during the
related Collection Period on a loan-by-loan basis; the total
Appraisal Reduction Amounts allocated during the related
Collection Period; and the total Appraisal Reduction Amounts as of
such Distribution Date on a loan-by-loan basis;
(xvi) the amount of Realized Losses incurred with respect to the
Mortgage Loans, Trust Fund expenses, Class Interest Shortfalls,
and Reduction Interest Shortfalls if any, during the related
Collection Period and in the aggregate for all prior Collection
Periods (except to the extent reimbursed or paid); and
(xvii) the original and then-current ratings of the Certificates,
provided that the Rating Agencies shall be required to provide the
Trustee with notification of any change, withdrawal, downgrade or
qualification of the ratings of the Certificates.
In the case of information furnished pursuant to subclauses (i), (ii) and
(iii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per $1,000 of original
Certificate Balance or Notional Balance, as the case may be.
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 send to each Person who at any time during the calendar year was a
Certificateholder of record, a report summarizing on an annual basis (if
appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(ii) above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates held by Persons other than Holders exempted from the reporting
requirements and information regarding the expenses of the Trust. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
(b) On each Distribution Date, the Trustee shall deliver or cause to be
delivered by first class mail (or by other means of equal or greater expediency)
to each Certificateholder, each prospective investor in a Certificate (upon
request), the Depositor, the Servicer, the Special Servicer, each Underwriter,
each Rating Agency and the Luxembourg Stock Exchange (so long as the Class A-1A,
Class A-1B, Class A-1C and Class A-2 Certificates are listed on such exchange) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period (after giving effect to Principal Prepayments and
other collections of principal required to be distributed on such Distribution
Date), which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in the Prospectus under the caption
"Description of the Mortgage Pool--Certain Terms and Conditions of the Mortgage
Loans" (calculated, where applicable, on the basis of the most recent relevant
information provided by the Borrowers to the Servicer or the Special Servicer,
as the case may be, and by the Servicer or the Special Servicer, as the case may
be, to the Trustee), which shall also include a loan-by-loan listing (in
descending balance order) showing loan number, property type, location, unpaid
principal balance, Mortgage Rate, paid through date, maturity date, net interest
portion of the Monthly Payment, principal portion of the Monthly Payment and any
Prepayment Premium. Such report shall be made available electronically;
provided, however, that the Trustee will provide Certificateholders with a
written copy of such report upon written request.
(c) On each Distribution Date, the Trustee shall deliver or shall cause to
be delivered by first class mail (or by other means of equal or greater
expediency) to each Certificateholder, each prospective investor in a
Certificate (upon request), Beneficial Owner (if known), the Depositor, each
Underwriter, each Rating Agency and the Luxembourg Stock Exchange (so long as
the Class A-1A, Class A-1B, Class A-1C and Class A-2 Certificates are listed on
such exchange) a copy of the Comparative Financial Status Report, the Delinquent
Loan Status Report, the Historical Loss Estimate Report, the Historical Loan
Modification Report, the REO Status Report and a Watch List (indicating those
Mortgage Loans that the Servicer has determined are in jeopardy of becoming
Specially Serviced Mortgage Loans) provided by the Servicer to the Trustee
pursuant to Section 3.13(c) and 3.13(e) on the Servicer Remittance Date. The
information that pertains to Specially Serviced Mortgage Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer at least one Business Day
prior to the related Servicer Remittance Date. Absent manifest error, (i) none
of the Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Borrower or
third party that is included in any reports, statements, materials or
information prepared or provided by the Servicer, the Special Servicer or the
Trustee, as applicable, (ii) the Trustee shall not be responsible for the
accuracy or completeness of any information supplied to it by the Servicer or
Special Servicer that is included in any reports, statements, materials or
information prepared or provided by the Servicer or Special Servicer, as
applicable, and (iii) the Trustee shall be entitled to conclusively rely upon
the Servicer's reports and the Special Servicer's reports without any duty or
obligation to recompute, verify or re-evaluate any of the amounts or other
information stated therein.
Commencing in May, 1998, the information contained in the reports in the
preceding paragraph of this Section 4.02(c) shall be made available to the
Trustee electronically by the Servicer in the form of the standard CSSA Reports,
and the Trustee will in lieu of mailing such reports as described in such
preceding paragraph make such reports available electronically in such form to
Certificateholders using the media mutually agreed upon by the Trustee, the
Underwriter and the Depositor; provided, however, that the Trustee will continue
to provide Certificateholders with a written copy of such reports upon request
in the manner described in such preceding paragraph.
The Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Servicer and
Special Servicer to the Depositor, each Underwriter and each Rating Agency
promptly after its receipt thereof. Upon request, the Trustee shall make such
reports available to the Certificateholders and the Special Servicer. Upon
request, the Trustee shall also make available any NOI Adjustment Worksheet for
a Mortgaged Property or REO Property in the possession of the Trustee to any
potential investor (as identified by the Certificateholder or Beneficial Owner
that is selling its Certificates or beneficial interest) in the Certificates.
(d) The Trustee shall make available at its offices, during normal business
hours, upon not less than two Business Day's prior notice, for review by any
Certificateholder, any prospective investor in a Certificate, the Depositor, the
Servicer, the Sub-Servicer, the Special Servicer, any Rating Agency, any
Underwriter, and any other Person to whom the Depositor believes such disclosure
is appropriate, originals or copies of documents relating to the Mortgage Loans
and any related REO Properties to the extent in its possession, including,
without limitation, the following items (except to the extent prohibited by
applicable law or to the extent it is aware that such disclosure is prohibited
by the Mortgage Documents provided that the Trustee shall have no obligation to
review the Mortgage Documents for such prohibition): (i) this Agreement and any
amendments thereto; (ii) all Distribution Date Statements delivered to the
Certificateholders since the Closing Date; (iii) all annual Officers'
Certificates and all accountants' reports delivered by the Servicer or Special
Servicer to the Trustee since the Closing Date regarding compliance with the
relevant agreements; (iv) the most recent property inspection report prepared by
or on behalf of the Servicer or the Special Servicer in respect of each
Mortgaged Property; (v) the most recent annual (or more frequent, if available)
operating statements, rent rolls (to the extent such rent rolls have been made
available by the related Borrower) and/or lease summaries and retail sales
information, if any, collected by or on behalf of the Servicer or the Special
Servicer in respect to each Mortgaged Property; (vi) any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Servicer and/or the Special Servicer; (vii) any and all Officers' Certificates
and other evidence delivered to or by the Trustee to support the Servicer's, the
Trustee's or the Fiscal Agent's, as the case may be, determination that any
Advance, if made, would be a Nonrecoverable Advance; and (viii) any other
materials not otherwise required to be provided hereunder provided to a
requesting Certificateholder as provided in this Agreement in situations where
such requesting Certificateholder declined to enter into a confidentiality
agreement with the Servicer. Copies of any and all of the foregoing items will
be available from the Trustee upon request. The Trustee will be permitted to
require payment by the requesting party (other than a Rating Agency) of a sum
sufficient to cover the reasonable costs and expenses of making such information
available and providing any copies thereof. The Trustee's obligation under this
Section 4.02(d) to make available any document is subject to the Trustee's
receipt of such document.
The Trustee shall provide access to the information in the Distribution
Date Statements referred to in Section 4.02(a) telephonically through the
Trustee's ASAP System, electronically through the Trustee's website or bulletin
board service or by such other mechanism as the Trustee may have in place from
time to time.
(e) 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, the Underwriter and the Depositor, 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 this Section 4.02 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 Holder that is non-U.S. Person that has
furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or an
acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(C) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code 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 4.04(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Depositor agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Servicer, the Special Servicer or the
Trustee and necessary to make such filing); and (vi) maintain such records
relating to each of the Upper-Tier REMIC and the Lower-Tier REMIC as may be
necessary to prepare the foregoing returns, schedules, statements or
information, such records, for federal income tax purposes, to be maintained on
a calendar year and on an accrual basis. The Holder of the largest Percentage
Interest in the Class R or Class LR Certificates shall be the tax matters person
of the Upper-Tier REMIC or the Lower-Tier REMIC, respectively, pursuant to
Treasury Regulations Section 1.860F-4(d). If more than one Holder should hold an
equal Percentage Interest in the Class R or Class LR Certificates larger than
that held by any other Holder, the first such Holder to have acquired such Class
R or Class LR Certificates shall be such tax matters person. The Trustee shall
act as attorney-in-fact and agent for the tax matters person of each of the
Upper-Tier REMIC and Lower-Tier REMIC, and each Holder of a Percentage Interest
in the Class R or Class LR Certificates, by acceptance hereof, is deemed to have
consented to the Trustee's appointment in such capacity and agrees to execute
any documents required to give effect thereto, and any fees and expenses
incurred by the Trustee in connection with any audit or administrative or
judicial proceeding shall be paid by the Trust Fund. The Trustee shall not
intentionally take any action or intentionally omit to take any action if, in
taking or omitting to take such action, the Trustee knows that such action or
omission (as the case may be) would cause the termination of the REMIC status of
the Upper-Tier REMIC or the Lower-Tier REMIC or the imposition of tax on the
Upper-Tier REMIC or the Lower-Tier REMIC (other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this paragraph if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor, the Servicer or the Special Servicer which does not
enable the Trustee to comply with any of clauses (i) through (vi) of the fifth
preceding sentence or which results in any action contemplated by clauses (i) or
(ii) of the next succeeding sentence. In this regard the Trustee shall (i)
exercise reasonable care not to allow the occurrence of any "prohibited
transactions" within the meaning of Code Section 860F(a), unless the party
seeking such action shall have delivered to the Trustee an Opinion of Counsel
(at such party's expense) that such occurrence would not (A) result in a taxable
gain, (B) otherwise subject the Upper-Tier REMIC or Lower-Tier REMIC to tax
(other than a tax at the highest marginal corporate tax rate on net income from
foreclosure property), or (C) cause either the Upper-Tier REMIC or Lower-Tier
REMIC to fail to qualify as a REMIC; and (ii) exercise reasonable care not to
allow the Trust Fund to receive income from the performance of services or from
assets not permitted under the REMIC Provisions to be held by a REMIC (provided,
however, that the receipt of any income expressly permitted or contemplated by
the terms of this Agreement shall not be deemed to violate this clause). None of
the Servicer, the Special Servicer and the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences) for any failure by the Trustee to comply with the
provisions of this Section 4.04. The Depositor, the Servicer and the Special
Servicer shall cooperate in a timely manner with the Trustee in supplying any
information within the Depositor's, the Servicer's or the Special Servicer's
control (other than any confidential information) that is reasonably necessary
to enable the Trustee to perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Depositor and the
Class LR Certificateholders will exercise the right described in Section 9.01 of
this Agreement to cause early termination of the Trust Fund; and (iii) no
Mortgage Loan is repurchased by the Mortgage Loan Seller, the Depositor or an
Mortgage Loan Seller pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from Available Funds sufficient funds to
pay or provide for the payment of, and to actually pay, such tax as is legally
owed by the Upper-Tier REMIC or Lower-Tier REMIC (but such authorization shall
not prevent the Trustee from contesting, at the expense of the Trust Fund, any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate or cause to be segregated, into a
separate non-interest bearing account, (i) the net income from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to the Upper-Tier REMIC or Lower-Tier REMIC after the Startup Day that is
subject to tax under Code Section 860G(d) and use such income or amount, to the
extent necessary, to pay such tax (and return the balance thereof, if any, to
the Collection Account or the Upper-Tier Distribution Account, as the case may
be). To the extent that any such tax is paid to the Internal Revenue Service,
the Trustee shall retain an equal amount from future amounts otherwise
distributable to the Holders of the Class R or the Class LR Certificates as the
case may be, and shall distribute such retained amounts to the Holders of
Regular Certificates or Lower-Tier Regular Interests, as applicable, until they
are fully reimbursed and then to the Holders of the Class R Certificates or the
Class LR Certificates, as applicable. Neither the Servicer, the Special Servicer
nor the Trustee shall be responsible for any taxes imposed on the Upper-Tier
REMIC or Lower-Tier REMIC except to the extent such tax is attributable to a
breach of a representation or warranty of the Servicer, the Special Servicer or
the Trustee or an act or omission of the Servicer, the Special Servicer or the
Trustee in contravention of this Agreement in both cases, provided, further,
that such breach, act or omission could result in liability under Section 6.03,
in the case of the Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer or the Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (A) if such Mortgage Loan is delinquent as to its Balloon
Payment (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the related Assumed Scheduled Payment, (B)
if such Mortgage Loan has been extended in accordance with the terms and
conditions otherwise set forth in this Agreement, the Minimum Defaulted Monthly
Payment and (C) if such Mortgage Loan is not described by the preceding two
sentences (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the Monthly Payment (after giving effect
to any modification other than as described in (A) or (B) above); provided,
however, that for purposes of calculating the amount of any P&I Advance required
to be made by the Servicer, the Trustee or the Fiscal Agent, notwithstanding the
amount of such Applicable Monthly Payment, interest shall be calculated at the
Mortgage Pass-Through Rate. The Applicable Monthly Payment shall be reduced, for
purposes of P&I Advances, by any modifications pursuant to Section 3.30 or
otherwise and by any reductions by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each Distribution
Date, the Servicer shall:
(i) remit to the Trustee for deposit in the Distribution Account an
amount equal to the Prepayment Premiums received by the Servicer
or Special Servicer in the Collection Period preceding such
Distribution Date;
(ii) remit to the Trustee for deposit in the Distribution Account an
amount equal to the aggregate of the Available Funds (other than
P&I Advances), the Trustee Fee and Subordinate Class Advance
Recoveries for such Distribution Date; and
(iii) make a P&I Advance by depositing into the Distribution Account, in
an amount equal to the sum of the Applicable Monthly Payments for
each Mortgage Loan to the extent such amounts were not received on
such Mortgage Loan as of the close of business on the immediately
preceding Determination Date, unless related recoveries are
received by the close of business on the day prior to the Servicer
Remittance Date (and therefore are not included in the remittance
described in the preceding clause (ii)).
(c) Intentionally deleted.
(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 unless
the related Delinquency is cured prior to the following Due Date 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 aggregate 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 Payment 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 Mortgage 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 any
such 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 first sentence of this
paragraph.) 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 above, 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. The amount required to be advanced by the
Servicer in respect of Applicable Monthly Payments on Mortgage Loans that have
been subject to an Appraisal Reduction Event will equal the product of (i) the
amount required to be advanced by the Servicer without giving effect to such
Appraisal Reduction Amounts and (ii) a fraction, the numerator of which is the
Stated Principal Balance of the Mortgage Loan (as of the last day of the related
Collection Period) less any Appraisal Reduction Amounts thereof and the
denominator of which is the Stated Principal Balance (as of the last day of the
related Collection Period). The amount to be advanced by the Servicer in respect
of any Mortgage Loan on any Distribution Date shall be reduced by the greater of
the reduction in respect of any Appraisal Reduction Event and the reduction
described in clause (d)(i) above.
(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 11:00 a.m., New York City time, on any Distribution Date the
Servicer shall not have made the P&I Advance required to have been made on the
related Servicer Remittance Date pursuant to Section 4.06(b)(iii), the Trustee
shall immediately notify the Fiscal Agent by telephone promptly confirmed in
writing, and the Trustee shall no later than 12:00 noon, New York City time, on
such Business Day deposit into the Distribution Account in immediately available
funds an amount equal to the P&I Advances otherwise required to have been made
by the Servicer. If the Trustee fails to make any P&I Advance required to be
made under this Section 4.06, the Fiscal Agent shall make such P&I Advance not
later than 2:00 p.m., New York City time, on such Business Day and, thereby, the
Trustee shall not be in default under this Agreement.
(h) None of the Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a P&I Advance as to any Monthly Payment or Assumed Scheduled
Payment or Minimum Defaulted Monthly Payment on any date on which a P&I Advance
is otherwise required to be made by this Section 4.06 if the Servicer, the
Trustee or Fiscal Agent, as applicable, determines that such advance will be a
Nonrecoverable Advance. The Servicer shall be required to provide notice to the
Trustee and the Fiscal Agent on or prior to the Servicer Remittance Date of any
such non-recoverability determination made on or prior to such date. The Trustee
and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Servicer that a P&I Advance, if made, would be a
Nonrecoverable Advance; provided, however, that if the Servicer has failed to
make a P&I Advance for reasons other than a determination by the Servicer that
such Advance would be a Nonrecoverable Advance, the Trustee or Fiscal Agent, as
applicable, shall make such advance within the time periods required by Section
4.06(g) unless the Trustee or the Fiscal Agent, in good faith, makes a
determination prior to the times specified in Section 4.06(g) that such advance
would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent, in
determining whether or not an Advance previously made is, or a proposed Advance,
if made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Servicer hereunder.
(i) The Servicer, the Trustee or the Fiscal Agent, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent permitted
pursuant to Section 3.06(ii) of this Agreement together with any related Advance
Interest Amount in respect of such P&I Advances to the extent permitted pursuant
to Section 3.06(iii) and the Servicer and Special Servicer hereby covenant and
agree to promptly seek and effect the reimbursement of such Advances from the
related Borrowers to the extent permitted by applicable law and the related
Mortgage Loan.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of (i)
the Default Interest and the Default Interest Distribution Account and (ii) the
Excess Interest and the Excess Interest Distribution Account shall constitute,
and that the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Class V-1 and Class V-2 Certificateholders and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, income with respect to their applicable share
of Default Interest and the amount of any interest on unreimbursed Advances
payable to the Servicer, the Trustee and the Fiscal Agent, as applicable,
therefrom pursuant to Section 3.06(iii) in the case of the Class V-1
Certificates, and Excess Interest in the case of the Class V-2 Certificates, at
the time or times and in the manner required by the Code.
<PAGE>
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates consist of the Class A-1A Certificates, the Class A-1B
Certificates, the Class A-1C Certificates, the Class A-CS1 Certificates, the
Class PS-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates,
the Class A-4 Certificates, the Class A-5 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class B-3 Certificates, the Class
B-4 Certificates, the Class B-5 Certificates, the Class B-6 Certificates, the
Class B-7 Certificates, the Class B-7H Certificates, the Class V-1 Certificates,
the Class V-2 Certificates, the Class R Certificates and the Class LR
Certificates.
The Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, 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-24, as set forth in the Table of Exhibits hereto. The
Certificates of each Class will be issuable in registered form only, in minimum
denominations of authorized Certificate Balance or Notional Balance, as
applicable, as described in the succeeding table, and multiples of $1 in excess
thereof (or such lesser amount if the Certificate or Notional Balance, as
applicable, is not a multiple of $1). With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (A) set forth on the face thereof or (B) in the case of any Global
Certificate, set forth on a schedule attached thereto or, in the case of any
beneficial interest in a Global Certificate, the amount set forth on the books
and records of the related Participant or Indirect Participant, as applicable,
(ii) expressed in terms of Initial Certificate Balance or Notional Balance, as
applicable, and (iii) be in an authorized denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
- ----- ------------ -----------------------------
A-1A $ 50,000.00 $ 511,492,100
A-1B $ 50,000.00 1,786,155,716
A-1C $ 50,000.00 382,686,304
A-CS1(1) $ 50,000.00 200,000,000
PS-1(2) $ 50,000.00 3,722,686,278.05
A-2 $ 50,000.00 223,361,177
A-3 $ 50,000.00 204,747,745
A-4 $ 50,000.00 167,520,883
A-5 $ 50,000.00 55,840,294
B-1 $100,000.00 158,214,167
B-2 $100,000.00 37,226,863
B-3 $100,000.00 37,226,863
B-4 $100,000.00 65,147,010
B-5 $100,000.00 18,613,431
B-6 $100,000.00 27,920,147
B-7 $ 50,000.00 46,532,578
B-7H $ 1,000.00 1,000.05
Each Certificate will share ratably in all rights of the related Class. The
Class B-7H Certificates shall be issuable in a single, registered definitive
physical certificate evidencing its aggregate initial Certificate Balance. The
Class V-1, Class V-2, Class R and LR Certificates will each be issuable in one
or more registered, definitive physical certificates in minimum denominations of
5% Percentage Interests and integral multiples of a 1% Percentage Interest in
excess thereof and together aggregating the entire 100% Percentage Interest in
each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the same
benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the Trust
Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Beneficial Owners the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled to
physical certificates for the 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 Section 5.02 and Applicable Procedures, the holder of a
beneficial interest in a Private Global Certificate may request that the
Depositor, or an agent thereof, cause the Depository (or any Agent Member) to
notify the Certificate Registrar and the Certificate Custodian in writing of a
request for transfer or exchange of such beneficial interest for an Individual
Certificate or Certificates. Upon receipt of such a request and payment by the
related Beneficial Owner of any attendant expenses, the Depositor shall cause
the issuance and delivery of such Individual Certificates. The Certificate
Registrar may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and give notice
to the Depository of such record date. Without the written consent of the
Depositor and the Certificate Registrar, no Global Certificate may be
transferred by the Depository except to a successor Depository that agrees to
hold the Global Certificates for the account of the Beneficial Owners.
(c) Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
(d) The Global Certificates (i) shall be delivered by the Certificate
Registrar to the Depository or, pursuant to the Depository's instructions on
behalf of the Depository to, and deposited with, the Certificate Custodian, and
in either case shall be registered in the name of Cede & Co. and (ii) shall bear
a legend substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
The Global Certificates may be deposited with such other Depository as the
Certificate Registrar may from time to time designate, and shall bear such
legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Trustee is unable to locate a qualified
successor, (ii) the Depositor or the Trustee, at its sole option, elects to
terminate the book-entry system through the Depository with respect to all or
any portion of any Class of Certificates or (iii) after the occurrence of an
Event of Default, Beneficial Owners owning not less than a majority in
Certificate Balance or Notional Balance, as applicable, of the Global
Certificate for any Class then outstanding advise the Depository through
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Beneficial Owner
or Owners of such Global Certificate, the Trustee shall notify the affected
Beneficial Owner or Owners through the Depository of the occurrence of such
event and the availability of Individual Certificates to such Beneficial Owners
requesting them. Upon surrender to the Trustee of Global Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Individual Certificates.
Neither the Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer,
the Special Servicer nor the Depositor shall be liable for any actions taken by
the Depository or its nominee, including, without limitation, any delay in
delivery of such instructions. Upon the issuance of Individual Certificates, the
Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer or Special Servicer has
instituted or has been directed to institute any judicial proceeding in a court
to enforce the rights of the Certificateholders under the Certificates, and the
Trustee, the Servicer or the Special Servicer has been advised by counsel that
in connection with such proceeding it is necessary or appropriate for the
Trustee, the Servicer or the Special Servicer to obtain possession of the
Certificates, the Trustee, the Servicer or the Special Servicer may in its sole
discretion determine that the Certificates represented by the Global
Certificates shall no longer be represented by such Global Certificates. In such
event, the Trustee or the Authenticating Agent will execute and authenticate and
the Certificate Registrar will deliver, in exchange for such Global
Certificates, Individual Certificates (and if the Trustee or the Certificate
Custodian has in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class B-7,
Class B-7H, Class V-1, Class V-2, Class R or Class LR Certificate, upon request
of such a Holder, information substantially equivalent in scope to the
information currently filed by the Servicer with the Commission pursuant to the
Exchange Act, plus such additional information required to be provided for
securities qualifying for resales under Rule 144A under the Act, all of which
information referred to in this paragraph shall be provided on a timely basis to
the Trustee by the Servicer.
For so long as the Class B-7, Class B-7H, Class V-1, Class V-2, Class R or
Class LR Certificates remain outstanding, neither the Depositor nor the Trustee
nor the Certificate Registrar shall take any action which would cause the Trust
Fund to fail to be subject to Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar form, and
each Certificate shall, upon original issue, be executed and authenticated by
the Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-24 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register; provided, however, in no event shall the Certificate
Registrar be required to maintain in the Certificate Register the names of the
individual Participants holding beneficial interests in the Trust Fund through
the Depository. The Person in whose name any Certificate is so registered shall
be deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Depositor, the Certificate Registrar, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, any Paying Agent and any agent
of any of them shall not be affected by any notice or knowledge to the contrary.
An Individual Certificate is transferable or exchangeable only upon the
surrender of such Certificate to the Certificate Registrar at the Corporate
Trust Office together with an assignment and transfer (executed by the Holder or
his duly authorized attorney), subject to the requirements of Sections 5.02(c),
(d), (e), (f), (g) and (h). Upon request of the Trustee, the Certificate
Registrar shall provide the Trustee with the names, addresses and Percentage
Interests of the Holders.
Neither the Trustee nor the Certificate Registrar shall have any obligation
or duty to monitor, determine or inquire as to compliance with any restriction
or transfer imposed under Article 5 of this Agreement or under applicable law
with respect to any transfer of any Certificate, or any interest therein, other
than to require delivery of the certification(s) and/or opinions of counsel
described in Article 5 applicable with respect to changes in registration of
record ownership of Certificates in the Certificate Register. The Trustee and
the Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depository or between or
among Depository participants or Beneficial Owners made in violation of
applicable restrictions.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Individual Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled and
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.02(d), (e), (f), (g) and
(h) and the rules of the Depository; the exchange, transfer and registration of
transfer of Individual Certificates or beneficial interests in the Private
Global Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates. With respect
to the transfer and registration of transfer of an Individual
Certificate representing an interest in the Class B-7, Class B-7H,
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 I
hereto (a "Regulation S Transfer Certificate"), and (2) the
transferee furnishes to the Certificate Registrar an
Investment Representation Letter; and
(C) The Certificate Registrar shall register the transfer of an Individual
Certificate if prior to the transfer such transferee furnishes to the
Certificate Registrar (1) an Investment Representation Letter to the effect that
the transfer is being made to an Institutional Accredited Investor or to an
Affiliated Person in accordance with an applicable exemption under the Act, and
(2) an Opinion of Counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register the
transfer of an Individual Certificate only if prior to the
transfer the transferee furnishes to the Certificate Registrar a
written undertaking by the transferor to reimburse the Trust for
any costs incurred by it in connection with the proposed
transfer. In addition, the Certificate Registrar may, as a
condition of the registration of any such transfer, require the
transferor to furnish such other certificates, legal opinions or
other information (at the transferor's expense) as the
Certificate Registrar may reasonably require to confirm that the
proposed transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates. Notwithstanding
any provision to the contrary herein, so long as a Private Global
Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall
only be made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the
Restricted Period, a Beneficial Owner of an interest in a
Rule 144A Global Certificate wishes at any time to transfer
its beneficial interest in such Rule 144A Global Certificate
to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the related Regulation S Global
Certificate, such Beneficial Owner may, in addition to
complying with all applicable rules and procedures of the
Depository and Cedel or Euroclear applicable to transfers by
their respective participants (the "Applicable Procedures"),
transfer or cause the transfer of such beneficial interest
for an equivalent beneficial interest in such Regulation S
Global Certificate only upon compliance with the provisions
of this Section 5.02(c)(ii)(A). Upon receipt by the
Certificate Registrar at the Corporate Trust Office of (1)
written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate
Registrar to credit or cause to be credited to another
specified Agent Member's account a beneficial interest in
the Regulation S Global Certificate in an amount equal to
the Denomination of the beneficial interest in the Rule 144A
Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures
containing information regarding the account of the Agent
Member and the Euroclear or Cedel account, as the case may
be, to be credited with, and the account of the Agent Member
to be debited for, such beneficial interest, and (3) a
certificate in the form of Exhibit J hereto given by the
Beneficial Owner of such interest, the Certificate Registrar
shall instruct the Depository or the Certificate Custodian,
as applicable, to reduce the Denomination of the Rule 144A
Global Certificate by the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be so
transferred and, concurrently with such reduction, to
increase the Denomination of the Regulation S Global
Certificate by the Denomination of the beneficial interest
in the Rule 144A Global Certificate to be so transferred,
and to credit or cause to be credited to the account of the
Person specified in such instructions (who shall be an Agent
Member acting for or on behalf of Euroclear or Cedel, or
both, as the case may be) a beneficial interest in the
Regulation S Global Certificate having a Denomination equal
to the amount by which the Denomination of the Rule 144A
Global Certificate was reduced upon such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the
Restricted Period, a Beneficial Owner of an interest in a
Rule 144A Global Certificate wishes at any time to transfer
its beneficial interest in such Rule 144A Global Certificate
to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the related Regulation S Global
Certificate, such holder may, in addition to complying with
all Applicable Procedures, transfer or cause the transfer of
such beneficial interest for an equivalent beneficial
interest in such Regulation S Global Certificate only upon
compliance with the provisions of this Section
5.02(c)(ii)(B). Upon receipt by the Certificate Registrar at
the Corporate Trust Office of (1) written instructions given
in accordance with the Applicable Procedures from an Agent
Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's
account a beneficial interest in the Regulation S Global
Certificate in an amount equal to the Denomination of the
beneficial interest in the Rule 144A Global Certificate to
be transferred, (2) a written order given in accordance with
the Applicable Procedures containing information regarding
the account of the Agent Member and, in the case of a
transfer pursuant to and in accordance with Regulation S,
the Euroclear or Cedel account, as the case may be, to be
credited with, and the account of the Agent Member to be
debited for, such beneficial interest, and (3) a certificate
in the form of Exhibit 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 aggregate Denomination of the
beneficial interest in the Rule 144A Global Certificate to
be so transferred and, concurrently with such reduction, to
increase the Denomination of the Regulation S Global
Certificate by the aggregate Denomination of the beneficial
interest in the Rule 144A Global Certificate to be so
transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in the Regulation S Global Certificate
having a Denomination equal to the amount by which the
Denomination of the Rule 144A Global Certificate was reduced
upon such transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a
Regulation S Global Certificate wishes at any time to
transfer its beneficial interest in such Regulation S Global
Certificate to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the related Rule
144A Global Certificate, such Beneficial Owner may, in
addition to complying with all Applicable Procedures,
transfer or cause the transfer of such beneficial interest
for an equivalent beneficial interest in such Rule 144A
Global Certificate only upon compliance with the provisions
of this Section 5.02(c)(ii)(C). Upon receipt by the
Certificate Registrar at the Corporate Trust Office of (1)
written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate
Registrar to credit or cause to be credited to another
specified Agent Member's account a beneficial interest in
the Rule 144A Global Certificate in an amount equal to the
Denomination of the beneficial interest in the Regulation S
Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures
containing information regarding the account of the Agent
Member to be credited with, and the account of the Agent
Member or, if such account is held for Euroclear or Cedel,
the Euroclear or Cedel account, as the case may be, to be
debited for, such beneficial interest, and (3) with respect
to a transfer of a beneficial interest in a Regulation S
Global Certificate for a beneficial interest in the related
Rule 144A Global Certificate (i) during the Restricted
Period, a certificate in the form of Exhibit L hereto given
by the holder of such beneficial interest or (ii) after the
Restricted Period, an Investment Representation Letter from
the transferee to the effect that such transferee is a
Qualified Institutional Buyer, the Certificate Registrar
shall instruct the Depository or the Certificate Custodian,
as applicable, to reduce the Denomination of the Regulation
S Global Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Global Certificate
to be transferred, and, concurrently with such reduction, to
increase the Denomination of the Rule 144A Global
Certificate by the aggregate Denomination of the beneficial
interest in the Regulation S Global Certificate to be so
transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in such Rule 144A Global Certificate
having a Denomination equal to the amount by which the
Denomination of the Regulation S Global Certificate was
reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global
Certificate to a transferee wishing to take delivery in the form
of an Individual Certificate will require the transferee to take
delivery subject to the restrictions on the transfer of such
Individual Certificate described in the Securities Legend, and
such transferee agrees that it will transfer such Individual
Certificate only as provided therein and herein. No such transfer
shall be made and the Certificate Registrar shall not register any
such transfer unless such transfer is made in accordance with this
Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will
require delivery in the form of an Individual Certificate
and the Certificate Registrar shall register such transfer
only upon compliance with the provisions of Section
5.02(c)(i)(C).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a
Regulation S Investor wishing to take delivery in the form
of an Individual Certificate will be registered by the
Certificate Registrar only upon compliance with the
provisions of Sections 5.02(c)(i)(A) and (B), respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Global Certificate to an
Individual Certificate pursuant to subparagraph (B) above
shall be made prior to the expiration of the Restricted
Period.
Upon acceptance for exchange or transfer of a beneficial
interest in a Private Global Certificate for an Individual
Certificate, as provided herein, the Certificate Registrar shall
endorse on the schedule affixed to the related Private Global
Certificate (or on a continuation of such schedule affixed to such
Private Global Certificate and made a part thereof) an appropriate
notation evidencing the date of such exchange or transfer and a
decrease in the Denomination of such Private Global Certificate
equal to the Denomination of such Individual Certificate issued in
exchange therefor or upon transfer thereof. Unless determined
otherwise by the Certificate Registrar in accordance with
applicable law, an Individual Certificate issued upon transfer of
or exchange for a beneficial interest in the Private Global
Certificate shall bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes at
any time to transfer such Certificate to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
related Regulation S Global Certificate or the related Rule 144A
Global Certificate, such transfer may be effected only in
accordance with the Applicable Procedures and this Section
5.02(c)(iv). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section
5.02(a), (2) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the
Certificate Registrar to credit or cause to be credited to another
specified Agent Member's account a beneficial interest in such
Regulation S Global Certificate or such Rule 144A Global
Certificate, as the case may be, in an amount equal to the
Denomination of the Individual Certificate to be so transferred,
(3) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the
Agent Member and, in the case of any transfer pursuant to
Regulation S, the Euroclear or Cedel account, as the case may be,
to be credited with such beneficial interest, and (4) (x) an
Investment Representation Letter from the transferee and, if
delivery is to be taken in the form of a beneficial interest in
the Regulation S Global Certificate, a Regulation S Transfer
Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer if delivery is to be
taken in the form of a beneficial interest in the Rule 144A Global
Certificate, the Certificate Registrar shall cancel such
Individual Certificate, execute and deliver a new Individual
Certificate for the Denomination of the Individual Certificate not
so transferred, registered in the name of the Holder or the
Holder's transferee (as instructed by the Holder), and the
Certificate Registrar shall instruct the Depository as the
Certificate Custodian, as applicable, to increase the Denomination
of the Regulation S Global Certificate or the Rule 144A Global
Certificate, as the case may be, by the Denomination of the
Individual Certificate to be so transferred, and to credit or
cause to be credited to the account of the Person specified in
such instructions who, in the case of any increase in the
Regulation S Global Certificate during the Restricted Period,
shall be an Agent Member acting for or on behalf of Euroclear or
Cedel, or both, as the case may be, a corresponding Denomination
of the Rule 144A Global Certificate or the Regulation S Global
Certificate, as the case may be.
It is the intent of the foregoing that under no
circumstances may an Institutional Accredited Investor that is not
a Qualified Institutional Buyer take delivery in the form of a
beneficial interest in a Private Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates,
an exchange of an Individual Certificate or Certificates for a
beneficial interest in a Private Global Certificate and an
exchange of an Individual Certificate or Certificates for another
Individual Certificate or Certificates (in each case, whether or
not such exchange is made in anticipation of subsequent transfer,
and, in the case of the Private Global Certificates, so long as
the Private Global Certificates remain outstanding and are held by
or on behalf of the Depository), may be made only in accordance
with this Section 5.02 and in accordance with the rules of the
Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or replacement
of Certificates not bearing the Securities Legend, the Certificates so issued
shall not bear the Securities Legend. If Certificates are issued upon the
transfer, exchange or replacement of Certificates bearing the Securities Legend,
or if a request is made to remove the Securities Legend on a Certificate, the
Certificates so issued shall bear the Securities Legend, or the Securities
Legend shall not be removed, as the case may be, unless there is delivered to
the Certificate Registrar such satisfactory evidence, which may include an
Opinion of Counsel (at the expense of the party requesting the removal of such
legend) familiar with United States securities laws, as may be reasonably
required by the Certificate Registrar, that neither the Securities Legend nor
the restrictions on transfers set forth therein are required to ensure that
transfers of any Certificate comply with the provisions of Rule 144A or Rule 144
under the Act or that such Certificate is not a "restricted security" within the
meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence,
the Certificate Registrar shall execute and deliver a Certificate that does not
bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the Holder of any Individual Certificate may transfer or exchange
the same in whole or in part (with a denomination equal to any authorized
denomination) by surrendering such Certificate at the Corporate Trust Office or
at the office of any transfer agent appointed as provided under this Agreement,
together with an instrument of assignment or transfer (executed by the Holder or
its duly authorized attorney), in the case of transfer, and a written request
for exchange, in the case of exchange. Following a proper request for transfer
or exchange, the Certificate Registrar shall, within five Business Days of such
request if made at such Corporate Trust Office or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at the Corporate Trust Office or at the office of such
transfer agent, as the case may be, to the transferee (in the case of transfer)
or Holder (in the case of exchange) or send by first Class mail (at the risk of
the transferee in the case of transfer or Holder in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual Certificate issued
in exchange for a beneficial interest in a Public Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors, as described herein. In the event that a
Responsible Officer of the Certificate Registrar becomes aware that such an
Individual Certificate or beneficial interest in a Private Global Certificate is
being held by or for the benefit of a Person who is not an Eligible Investor, or
that such holding is unlawful under the laws of a relevant jurisdiction, then
the Certificate Registrar shall have the right to void such transfer, if
permitted under applicable law, or to require the investor to sell such
Individual Certificate or beneficial interest in a Private Global Certificate to
an Eligible Investor within fourteen days after notice of such determination and
each Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding transfer and
exchange, transfers of the Global Certificates shall be limited to transfers of
such Global Certificates in whole, but not in part, to nominees of the
Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
(i) Subject to Section 5.02(e), transfers of the Class B-7, Class B-7H,
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-7, Class B-7H, 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 an Institutional Accredited
Investor and (y) prior to such transfer the transferee furnishes to the
Certificate Registrar an Investment Representation Letter. In addition, the
Certificate Registrar may as a condition of the registration of any such
transfer require the transferor to furnish such other certifications, legal
opinions or other information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Servicer, the Trustee nor the Certificate
Registrar is obligated to register or qualify the Class B-7, Class B-7H, Class
V-1, Class V-2, Class R or Class LR Certificates under the Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Certificateholder desiring to effect such a transfer shall,
and does hereby agree to, indemnify the Depositor, the Servicer, the Trustee and
the Certificate Registrar, against any loss, liability or expense that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
(k) No transfer of any Class A-2, Class A-3, Class A-4, Class A-5, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class
B-7H, 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 (with respect to transfer of
Restricted Certificates other than the Class V-1, Class V-2 and Residual
Certificates) 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 (1) 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 (2) 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 (1) 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 (with respect to transfers of beneficial
interests in Global Certificates which are Restricted Certificates other than
the Class V-1, Class V-2 and Residual Certificates) 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.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the
express written consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the Transfer, and such
proposed Transfer shall not be effective, without such consent
with respect thereto. In connection with any proposed Transfer of
any Ownership Interest, the Certificate Registrar shall, as a
condition to such consent, (x) require delivery to it in form and
substance satisfactory to it, and the proposed transferee shall
deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as
Exhibit C-1 (a "Transferee Affidavit") of the proposed transferee
(A) that such proposed transferee is a Permitted Transferee and
(B) stating that (i) the proposed transferee historically has paid
its debts as they have come due and intends to do so in the
future, (ii) the proposed transferee understands that, as the
holder of an Ownership Interest, it may incur liabilities in
excess of cash flows generated by the residual interest, (iii) the
proposed transferee intends to pay taxes associated with holding
the Ownership Interest as they become due, (iv) the proposed
transferee will not transfer the Ownership Interest to any Person
that does not provide a Transferee Affidavit or as to which the
proposed transferee has actual knowledge that such Person is not a
Permitted Transferee or is acting as an agent (including a broker,
nominee or other middleman) for a Person that is not a Permitted
Transferee, and (v) the proposed transferee expressly agrees to be
bound by and to abide by the provisions of this Section 5.02(l)
and (y) other than in connection with the initial issuance of the
Class R and Class LR Certificates, require a statement from the
proposed transferor substantially in the form attached as Exhibit
C-2 (the "Transferor Letter"), that the proposed transferor has no
actual knowledge that the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to know that the
proposed transferee's statements in the preceding clauses
(x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the
proposed transferee is not a Permitted Transferee, no Transfer to
such proposed transferee shall be effected and such proposed
Transfer shall not be registered on the Certificate Register;
provided, however, that the Certificate Registrar shall not be
required to conduct any independent investigation to determine
whether a proposed transferee is a Permitted Transferee.
Upon notice to the Certificate Registrar that there has occurred a Transfer
to any Person that is a Disqualified Organization or an agent thereof (including
a broker, nominee, or middleman) in contravention of the foregoing restrictions,
and in any event not later than 60 days after a request for information from the
transferor of such Ownership Interest, or such agent, the Certificate Registrar
and the Trustee agree to furnish to the IRS and the transferor of such Ownership
Interest or such agent such information necessary to the application of Section
860E(e) of the Code as may be required by the Code, including, but not limited
to, the present value of the total anticipated excess inclusions with respect to
such Class R or Class LR Certificate (or portion thereof) for periods after such
Transfer. At the election of the Certificate Registrar and the Trustee, the
Certificate Registrar and the Trustee may charge a reasonable fee for computing
and furnishing such information to the transferor or to such agent referred to
above; provided, however, that such Persons shall in no event be excused from
furnishing such information.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Servicer and the Trustee an instrument in which such Paying
Agent shall agree with the Servicer and the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums have been
paid to the Certificateholders or disposed of as otherwise provided herein. The
initial Paying Agent shall be the Trustee. Except for LaSalle National Bank, as
the initial Paying Agent, the Paying Agent shall at all times be an entity
having a long-term unsecured debt rating of at least "AA" by Fitch, DCR and S&P
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 or the Servicer or Sub-Servicer (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, in the case of any Certificateholder and the expense of the Trust in
the case of the Servicer or Sub-Servicer.
(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, the Servicer and the Special
Servicer.
The Depositor, the Servicer and the Special Servicer each shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement.
SECTION 6.02. Merger or Consolidation of the Servicer.
Subject to the following paragraph, the Servicer will keep in full effect
its existence, rights and good standing as a limited partnership under the laws
of the State of Delaware 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.
(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 liability which would
otherwise be imposed by reason of willful misconduct, bad faith, fraud or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties hereunder. The Depositor, the Servicer, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any appropriate
Person respecting any matters arising hereunder. The Depositor, the Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor or the Servicer or the Special Servicer shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense (including
legal fees and expenses) (i) incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misconduct, bad faith, fraud or
negligence (or in the case of the Servicer or the Special Servicer, by reason of
any specific liability imposed for a breach of the Servicing Standard) in the
performance of duties hereunder or by reason of reckless disregard of
obligations or duties hereunder, in each case by the Person being indemnified or
(ii) imposed by any taxing authority if such loss, liability or expense is not
specifically reimbursable pursuant to the terms of this Agreement. Neither the
Depositor nor the Servicer nor the Special Servicer shall be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its respective duties under this Agreement and in its opinion does
not expose it to any expense or liability; provided, however, that the Depositor
or the Servicer or the Special Servicer may in its discretion undertake any
action related to its obligations hereunder which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Servicer and the Special Servicer shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06 of
this Agreement.
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the Special
Servicer.
(a) The Servicer and the Special Servicer may assign their respective
rights and delegate their respective duties and obligations under this Agreement
in connection with the sale or transfer of a substantial portion of their
mortgage servicing or asset management portfolio, provided that: (i) the
purchaser or transferee accepting such assignment and delegation (A) shall be
satisfactory to the Trustee and to the Depositor, (B) shall be an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia, authorized under such laws to perform the duties of a
servicer of mortgage loans or a Person resulting from a merger, consolidation or
succession that is permitted under Section 6.02, (C) shall be acceptable to each
Rating Agency as confirmed by a letter from each Rating Agency delivered to the
Trustee that such assignment or delegation will not cause a downgrade,
withdrawal or qualification of the then current ratings of the Certificates, and
(D) shall execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by the Servicer under this Agreement from
and after the date of such agreement; (ii) as confirmed by a letter from each
Rating Agency delivered to the Trustee, each Rating Agency's rating or ratings
of the Regular Certificates in effect immediately prior to such assignment, sale
or transfer will not be qualified, downgraded or withdrawn as a result of such
assignment, sale or transfer; (iii) the Servicer or the Special Servicer shall
not be released from its obligations under this Agreement that arose prior to
the effective date of such assignment and delegation under this Section 6.04;
and (iv) the rate at which the Servicer Compensation or Special Servicer
Compensation, as applicable (or any component thereof) is calculated shall not
exceed the rate then in effect. Upon acceptance of such assignment and
delegation, the purchaser or transferee shall be the successor Servicer or
Special Servicer, as applicable, hereunder.
(b) Except as provided in this Section 6.04, the Servicer and the Special
Servicer shall not resign from their respective obligations and duties hereby
imposed on them except upon determination that such duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel (obtained at the resigning Servicer's or
Special Servicer's expense) to such effect delivered to the Trustee.
(c) The Depositor, upon paying the Servicer a negotiated fee, shall be
permitted to remove the Servicer provided that (i) each Rating Agency has
confirmed in writing that such removal and replacement will not result in a
downgrade, qualification or withdrawal of the then current ratings by such
Rating Agency to any Class of Certificates and (ii) the replacement Servicer
shall be a servicing company that is an Affiliate of the Depositor; provided,
however, that such replacement Servicer will not directly service or specially
service any Mortgage Loan in which an Affiliate of the Depositor has a common
equity interest in the related Borrower or its Affiliate. If the Depositor
removes the Servicer pursuant to the preceding sentence, the Depositor shall pay
for all costs and expenses that would otherwise be incurred by the Trust Fund in
connection with such removal and replacement. Without limiting the generality of
the succeeding paragraph, no such removal shall be effective unless and until
(i) the Servicer or the Special Servicer has been paid any unpaid Servicer
Compensation or Special Servicer Compensation, as applicable, unreimbursed
Advances (including Advance Interest Amounts thereon to which it is entitled)
and all other amounts to which the Servicer or the Special Servicer is entitled
hereunder to the extent such amounts accrue prior to such effective date and
(ii) with respect to a resignation by the Servicer, the successor Servicer has
deposited into the Investment Accounts from which amounts were withdrawn to
reimburse the terminated Servicer, an amount equal to the amounts so withdrawn,
to the extent such amounts would not have been permitted to be withdrawn except
pursuant to this paragraph, in which case the successor Servicer shall,
immediately upon deposit, have the same right of reimbursement or payment as the
terminated Servicer had immediately prior to its termination without regard to
the operation of this paragraph.
No resignation or removal of the Servicer or the Special Servicer as
contemplated by the preceding paragraphs shall become effective until the
Trustee or a successor Servicer or Special Servicer shall have assumed the
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
(d) With respect to any Mortgage Loan in which an Affiliate of the Servicer
holds any subordinate debt, preferred equity investment or mezzanine debt of a
related Borrower or its Affiliate, the Servicer may service such Mortgage Loan.
However, the Servicer shall appoint an operating advisor acceptable to the
Rating Agencies, as evidenced by written confirmation that the appointment of
such operating advisor will, in and of itself, not cause a downgrade,
qualification or withdrawal of the then current ratings assigned to any Class of
Certificates, who shall make all decisions with respect to the administration of
such Mortgage Loan and the related Mortgaged Property including, without
limitation, lease reviews and approvals, calculation of and releases from
reserves, modifications, waivers and amendments of the terms thereof, releases
of collateral and transfers to special servicing. Such operating advisor will be
obligated to perform such function in the best interest of the
Certificateholders in accordance with the Servicing Standard. The cost of
retaining such operating advisor shall be paid by the Servicer, and no costs or
expense shall be passed through to the Trust Fund as a result of the appointment
of such operating advisor.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer and the Special Servicer.
The Servicer and the Special Servicer shall afford the Depositor, the
Trustee and the Rating Agencies, upon reasonable notice, during normal business
hours access to all records maintained by it in respect of its rights and
obligations hereunder and access to its officers responsible for such
obligations. Upon request, the Servicer and the Special Servicer shall furnish
to the Depositor and the Trustee its most recent financial statements (or in the
case of the initial Servicer, the financial statements of AMRESCO, INC. if no
separate financial statements have been prepared for the initial 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
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to remit to the Collection Account or
any failure by the Servicer to remit to the Trustee for deposit
into the Distribution Account, Upper-Tier Distribution Account,
Excess Interest Distribution Account, Interest Reserve Account or
Default Interest Distribution Account, any amount required to be
so deposited by the Servicer (including a P&I Advance) pursuant
to, and at the time specified by the terms of this Agreement; or
(ii) any failure on the part of the Servicer duly to observe or perform
in any material respect any other of the covenants or agreements
or the breach of any representations or warranties on the part of
the Servicer contained in this Agreement which continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Depositor or the Trustee,
or to the Servicer, the Depositor and the Trustee by the Holders
of Certificates evidencing Percentage Interests of at least 25% of
any Class affected thereby; or
(iii) confirmation in writing by any Rating Agency that failure to
remove the Servicer will, in and of itself, cause a downgrade,
qualification or withdrawal of the then current ratings assigned
to any Class of Certificates; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Servicer and such decree or order shall have remained
in force undischarged or unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Servicer, or of or relating to all or
substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vii) the Servicer shall fail to make any Property Advance required to
be made by the Servicer hereunder (whether or not the Trustee or
the Fiscal Agent makes such Advance), which failure continues
unremedied for a period of thirty (30) days after the date on
which such Property Advance was first due (or for any shorter
period as may be required, if applicable, to avoid any lapse in
insurance coverage required under any Mortgage or this Agreement
with respect to any Mortgaged Property or to avoid any foreclosure
or similar action with respect to any Mortgaged Property by reason
of a failure to pay real estate taxes and assessments and if the
Trustee makes a required Property Advance pursuant to Section
3.08(a) due to the Servicer's failure to make a required Advance,
such Event of Default shall occur immediately upon such Advance);
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; or
(vi) the Special Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vii) the Special Servicer shall no longer be an "approved" special
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 Terminated Party 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 agree in the event it is terminated pursuant to this Section 7.01 to
promptly (and in any event no later than ten Business Days subsequent to such
notice) provide, at its own expense, the Terminating Party with all documents
and records requested by the Terminating Party to enable the Terminating Party
to assume its functions hereunder, and to cooperate with the Terminating Party
and the successor to its responsibilities hereunder in effecting the termination
of its responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Servicer or Special Servicer or the Terminating Party,
as applicable, for administration by it of all cash amounts which shall at the
time be or should have been credited by the Servicer or the Special Servicer to
the Collection Account, and any REO Account, Lock-Box Account or Cash Collateral
Account thereafter be received with respect to the Mortgage Loans, and shall
promptly provide the Terminating Party or such successor Servicer or successor
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. If and to the extent that the
Terminated Party has not reimbursed such costs and expenses, the Terminating
Party shall have an affirmative obligation to take all reasonable actions to
collect such expenses on behalf of the Trust Fund.
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 Compensation or
Special Servicing Compensation, as applicable, and all funds relating to the
Mortgage Loans that accrue after the date of the Terminating Party's succession
to which the Servicer or Special Servicer would have been entitled if the
Servicer or Special Servicer, as applicable, had continued to act hereunder. In
the event any Advances made by the Servicer and the Trustee or the Fiscal Agent
shall at any time be outstanding, or any amounts of interest thereon shall be
accrued and unpaid, all amounts available to repay Advances and interest
hereunder shall be applied entirely to the Advances made by the Trustee or the
Fiscal Agent (and the accrued and unpaid interest thereon), until such Advances
and interest shall have been repaid in full. Notwithstanding the above, the
Trustee may, if it shall be unwilling to so act, or shall, if it is unable to so
act, or if the Holders of Certificates entitled to at least 25% of the aggregate
Voting Rights so request in writing to the Trustee, or if neither the Trustee
nor the Fiscal Agent is rated by each Rating Agency in one of its two highest
long-term debt rating categories or if the Rating Agencies do not provide
written confirmation that the succession of the Trustee, as Servicer or Special
Servicer, as applicable, will not cause a downgrade, qualification or withdrawal
of the then current ratings assigned to the Certificates, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which will not result in a
downgrade, qualification or withdrawal of the then current rating or ratings
assigned to any Class of Certificates as evidenced in writing by each Rating
Agency, as the successor to the Servicer or Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer or Special Servicer hereunder. No appointment of
a successor to the Servicer or Special Servicer hereunder shall be effective
until the assumption by such successor of all the Servicer's or Special
Servicer's responsibilities, duties and liabilities hereunder. Pending
appointment of a successor to the Servicer (or the Special Servicer if the
Special Servicer is also the Servicer) hereunder, unless the Trustee shall be
prohibited by law from so acting, the Trustee shall act in such capacity as
herein above provided. Pending the appointment of a successor to the Special
Servicer, unless the Servicer is also the Special Servicer, the Servicer shall
act in such capacity. In connection with such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder for such compensation, then, subject to approval
by the Directing Holders, 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. Upon determining that a successor to the Terminated Party
cannot be obtained for the compensation that the Terminated Party was receiving,
the Trustee shall give notice of that fact to the Directing Holders. Once the
Trustee has determined the amount of compensation acceptable to a proposed
successor to the Terminated Party, the Trustee shall give notice to the
Directing Holders of the identity of such successor and the proposed
compensation. The Directing Holders will then have ten Business Days during
which to propose their own successor and compensation (which must be acceptable
to the Rating Agencies, as evidenced in writing that the appointment of such
successor, in and of itself would not result in a downgrade, qualification or
withdrawal by any Rating Agency of the then current ratings assigned to the
Certificates) or to approve the successor and compensation proposed by the
Trustee. The Depositor, the Trustee, the Servicer or Special Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Servicer or the Special Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Certificates and to each Rating Agency notice
of such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Servicer Event of Default or a Special
Servicer Event of Default, so long as such Servicer Event of Default or Special
Servicer Event of Default, if applicable, shall not have been remedied, the
Trustee, in addition to the rights specified in Section 7.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all Holders of
Certificates, waive any default by the Servicer or Special Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits (including P&I Advances) to or payments from the
Collection Account or the Distribution Account or in remitting payments as
received, in each case in accordance with this Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.05 shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall take action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors, employees,
agents or "control" persons within the meaning of the Act shall have any
liability arising out of or in connection with this Agreement, provided, that,
subject to Section 8.02, no provision of this Agreement shall be construed to
relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, and after
the curing or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any resolutions, certificates,
statements, reports, opinions, documents, orders or other
instruments furnished to the Trustee that conform on their face to
the requirements of this Agreement without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or
Responsible Officers, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates
entitled to greater than 50% of the Percentage Interests (or such
other percentage as is specified herein) of each affected Class
(or the Directing Holders if so specified herein), 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,
however, 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 the 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 and Fiscal Agent Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Fiscal Agent, the Servicer, or the Special
Servicer and the Trustee, the Fiscal Agent, the Servicer and the Special
Servicer assume no responsibility for their correctness. The Trustee, the Fiscal
Agent, the Servicer and the 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 or Special Servicer pursuant to
Section 7.02) or any subservicer taken in the name of the Trustee, except to the
extent such action is taken at the express written direction of the Trustee; the
failure of the Servicer or the Special Servicer or any subservicer to act or
perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Servicer or the Special Servicer (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02)
unless the taking of such action is not permitted by the express terms of this
Agreement; provided, however, that the foregoing shall not relieve the Trustee
of its obligation to perform its duties as specifically set forth in this
Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable for the
use or application by the Depositor, the Servicer or the Special Servicer of any
of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Servicer or the Special
Servicer in respect of the assignment of the Mortgage Loans or deposited in or
withdrawn from the Collection Account, Distribution Account, Upper-Tier
Distribution Account, Lock-Box Account, Cash Collateral Account, Reserve
Accounts, Interest Reserve Account, Default Interest Distribution Account or
Excess Interest Distribution Account or any other account maintained by or on
behalf of the Servicer or the Special Servicer, other than any funds held by the
Trustee or the Fiscal Agent, as applicable. Neither the Trustee nor the Fiscal
Agent shall have any responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Servicer) or to record this
Agreement. In making any calculation hereunder which includes as a component
thereof the payment or distribution of interest for a stated period at a stated
rate "to the extent permitted by applicable law," the Trustee shall assume that
such payment is so permitted unless a Responsible Officer of the Trustee has
actual knowledge, or receives an Opinion of Counsel (at the expense of the
Person asserting the impermissibility) to the effect, that such payment is not
permitted by applicable law.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and Fiscal Agent
in its individual capacity or any other capacity may become the owner or pledgee
of Certificates, and may deal with the Depositor and the Servicer in banking
transactions, with the same rights it would have if it were not Trustee, Fiscal
Agent or such agent.
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(iii) except any such expense, disbursement or
advance as may arise from its negligence or bad faith; provided, however, that,
subject to the last paragraph of Section 8.01, neither the Trustee nor the
Fiscal Agent shall refuse to perform any of its duties hereunder solely as a
result of the failure to be paid the Trustee Fee and the Trustee's expenses or
any sums due to the Fiscal Agent.
The Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Servicer or the Special Servicer, respectively,
hereunder, pursuant to or otherwise arising from the resignation or removal of
the Servicer, in accordance with any of the provisions of this Agreement (and
including the reasonable fees and expenses and disbursements of its counsel and
all other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from the negligence or bad faith of the
Trustee or expenses incurred by the Trustee in its capacity as successor
Servicer; 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 Depositor.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Servicer, the Special Servicer and the Trustee (each, a
"Cross-Indemnifying Party") shall indemnify the Servicer, the Special Servicer,
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, a "Cross-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 Cross-Indemnified Party may
sustain in connection with this Agreement (including, without limitation,
reasonable fees and disbursements of counsel incurred by the Cross-Indemnified
Party in any action or proceeding between the Cross-Indemnifying Party and the
Cross-Indemnified Party or between the Cross-Indemnified Party and any third
party or otherwise) related to each such Cross-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 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, a
"Trust-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
Trust-Indemnified Party in any action or proceeding between any of the Paying
Agent, the Certificate Registrar, the Custodian, the Depositor, the Servicer and
the Special Servicer and the Trust-Indemnified Party or between the
Trust-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 Trust-Indemnified
Party and (ii) those as to which such Trust-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 a Trust-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
Trust-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, DCR 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, DCR 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, DCR 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, the
Special 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 by any Rating Agency 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 by any Rating
Agency 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 shall 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, to 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 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. Notwithstanding the termination of the Trust REMICs or
the Trust Fund, the Trustee shall be responsible for filing the final Tax
Returns for the Trust REMICs and applicable income tax or information returns
for the Grantor Trust for the period ending with such termination, and shall
retain books and records with respect to the Trust REMICs and the Grantor Trust
for the same period of retention for which it maintains its own tax returns or
other reasonable period.
(c) The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I Advances previously made on
account of interest);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon at the Advance Rate, and unpaid Servicing Compensation,
Special Servicing Compensation, Trustee Fees and Trust Fund
expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
All costs and expenses incurred by any and all parties to this Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne
by the party exercising its purchase rights hereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding, the holders
of the Class V-1 Certificates shall receive that portion of the proceeds of a
sale of the assets of the Trust Fund allocable to the Net Default Interest, as
their interests may appear, and the holders of the Class V-2 Certificates shall
receive that portion of the proceeds of a sale of the assets of the Trust Fund
allocable to Excess Interest, as their interests may appear.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance of each Certificate or Lower-Tier
Regular Interest, together with amounts required to be distributed on such
Distribution Date pursuant to Section 4.01(a), (b), (c) or (d) 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. 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 100% 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 (less any P&I Advances previously
made on account of principal);
(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
(less any P&I Advances previously made on account of interest);
(iii) the aggregate amount of all unreimbursed Advances with respect to
such Mortgage Loan, with interest thereon at the Advance Rate, and
unpaid Special Servicing Compensation, Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(iv) the amount of any Liquidation Expenses incurred by the Trust Fund
in connection with such purchase;
provided, that, such Holder, at its expense, has provided the Trustee with an
Opinion of Counsel to the effect that such purchase would not (x) result in a
gain which would be subject to the tax on net income derived from "prohibited
transactions" imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on the Lower-Tier REMIC or the Upper-Tier REMIC
under the REMIC Provisions or (y) cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC; such opinion relying upon
appraisals of the fair market value (for the purposes of Section 860F(c)(1) of
the Code) of such Mortgage Loan by at least three Independent appraisers.
Notwithstanding the foregoing, such Mortgage Loan may not be purchased if
the fair market value of the Mortgage Loan is greater than 100% of the
outstanding principal balance of such Mortgage Loan.
The Holder of 100% of the most subordinate Class of Certificates (provided
that the Class B-7H Certificates shall not be considered a Class for such
purposes) may purchase any Mortgage Loan on or after its Anticipated Repayment
Date under the same terms and conditions hereunder as in the case of a purchase
by the Holder of the Class LR Certificates if the Holder of the Class LR
Certificates either (i) notifies the Holder of the most subordinate Class of
Certificates that it will not purchase such Mortgage Loan or (ii) does not, in
fact, purchase such Mortgage Loan on its Anticipated Repayment Date.
The proceeds of any such purchase hereunder shall be deposited in the
Collection Account and disbursed as provided herein.
Notwithstanding anything to the contrary contained in this Section 9.01(g),
if the Class LR or most subordinate Class of Certificates shall be held by an
Affiliate of the Depositor, such Affiliate may not exercise any of the purchase
rights under this Section 9.01(g) with respect to a Mortgage Loan that is in
default.
<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 B-7, Class B-7H, Class V-1, Class V-2, Class R and Class LR
Certificates or Holders of any Class of Certificates no longer held through a
Depository and instead held in registered, definitive form shall be deemed to
have been given upon being sent by first class mail, postage prepaid) as
follows:
If to the Trustee, to:
LaSalle National Bank
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services, Nomura 1998-D6
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services, Nomura 1998-D6
If to the Depositor, to:
Nomura Asset Securities Corporation
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Perry Gershon and Marlyn A. Marincas
With copies to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Anna H. Glick
If to the Servicer, to:
AMRESCO Services, L.P.
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
If to the Special Servicer, to:
CRIIMI MAE Services Limited Partnership
CRI Building
11200 Rockville Pike
Rockville, Maryland 20852
Attention: Brian Hanson
with a copy to:
CRIIMI MAE Services
CRI Building
11200 Rockville Pike
Rockville, Maryland 20852
Attention: Legal Department
If to the Sub-Servicer, to:
Nomura Asset Capital Services LLC
600 East Las Colinas Boulevard
Suite 1300
Irving, Texas 75039
Attention: Chief Legal Officer
with a copy to:
Powell, Goldstein, Frazer & Murphy
Sixth Floor
1001 Pennsylvania Avenue, NW
Washington, DC 20004
Attention: Keith Dunsmore
If to either Mortgage Loan Seller, to:
Nomura Asset Capital Corporation
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Perry Gershon and
Marlyn A. Marincas
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, each Underwriter and each Rating Agency with respect to each of
the following of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the merger, consolidation, resignation or termination of the
Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d) or
2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account or the
Distribution Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(viii) each report to Certificateholders described in Section 4.02 and
Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an anchor lease at
a retail Mortgaged Property;
(xi) any termination of licensing certification at a Mortgaged Property
securing a Senior Housing/Healthcare Loan;
(xii) any material damage to a Mortgaged Property; and
(xiii) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan.
(b) The Servicer shall promptly furnish to each Rating Agency (and to the
Special Servicer with respect to clause (iii) and (iv) below) 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;
(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; however, with
respect to Fitch, the Servicer shall provide only the quarterly
and annual statements or reports and with respect to DCR, only
upon request (and with respect to the Special Servicer, such
information shall be delivered quarterly, other than information
related to Mortgage Loans that are on the Watch List, unless the
Special Servicer agrees to reimburse the Servicer for the cost of
delivering such information); and
(iv) a copy of any notice with respect to a breach of a representation
or warranty with respect to any Mortgage Loan.
(c) The Servicer shall furnish each Rating Agency, each Underwriter and the
Depositor with such information with respect to the Trust Fund, a Mortgaged
Property, a Borrower and any Mortgage Loan as such Rating Agency, such
Underwriter or the Depositor shall reasonably request and which the Servicer can
reasonably obtain. The Rating Agencies shall not be charged any fee or expense
in connection therewith. The Servicer shall send copies to the Depositor of any
information provided to any Rating Agency.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Duff & Phelps Credit Rating Co.
55 East Monroe Street, 35th Floor
Chicago, Illinois 60603
Attention: CMBS Monitoring
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Managing Director
Commercial Mortgage-Backed Securities
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
Attention: Commercial Mortgage Surveillance
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto. In addition, with respect to any request
for Rating Agency confirmation pursuant to any of the provisions of this
Agreement, the party seeking such Rating Agency confirmation shall deliver a
copy of such request to the Depositor.
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 hereof to the extent necessary or desirable to enable
the Certificates to be listed in the Luxembourg Stock Exchange (Bureau de
Luxembourg) 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 Interests of the Class or
Classes affected hereby;
(iii) alter the Servicing Standard or the obligations of the Servicer,
the Special Servicer, the Trustee or the Fiscal Agent to make a
P&I Advance or Property Advance without the consent of the Holders
of all Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, at any time and from time to time, without the consent of the
Certificateholders, may amend this Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Trust REMIC as two separate REMICs, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
In the event that neither the Depositor nor any successor thereto, if any,
is in existence, any amendment under this Section 10.07 shall be effective with
the consent of the Trustee, the Fiscal Agent, the Special Servicer and the
Servicer, in writing, and to the extent required by this Section, the
Certificateholders. Promptly after the execution of any amendment, the Servicer
shall forward to the Trustee and the Trustee shall furnish written notification
of the substance of such amendment to each Certificateholder and each Rating
Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.07 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
method of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Servicer and/or the Trustee, the Servicer and the Trustee shall have
received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property).
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the Servicer
may request and shall be entitled to rely conclusively upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by either Rating Agency to maintain the rating issued by
it or requested by the Trustee for any purpose described in clause (i), (ii),
(iii) or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee on
behalf of Certificateholders as contemplated by this Agreement and the sale by
the Depositor of the Certificates be, and be treated for all purposes as, a sale
by the Depositor of the undivided portion of the beneficial interest in the
Trust Fund represented by the Certificates. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Distribution Account, Upper-Tier
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 Special Servicer, the
Trustee and the Fiscal Agent have caused their names to be signed hereto by
their respective officers thereunto duly authorized all as of the day and year
first above written.
Signed and acknowledged NOMURA ASSET SECURITIES CORPORATION,
in the presence of as Depositor
- ------------------------------
Print Name: By:
---------------------------------
Name:
- ------------------------------ Title:
Print Name:
Signed and acknowledged AMRESCO SERVICES, L.P.
in the presence of as Servicer
- ------------------------------ By: AMRESCO Mortgage Capital, Inc.
Print Name: its General Partner
- ------------------------------ By:
Print Name: ---------------------------------
Name:
Title:
Signed and acknowledged CRIIMI MAE SERVICES LIMITED
in the presence of PARTNERSHIP,
as Special Servicer
- ------------------------------ By: CRIIMI MAE SERVICES, INC.
Print Name: its General Partner
- ------------------------------ By:
Print Name: ---------------------------------
Name:
Title:
Signed and acknowledged LASALLE NATIONAL BANK
in the presence of as Trustee, Custodian, Certificate
Registrar and Paying Agent
- ------------------------------ By:
Print Name: -------------------------------
Name:
Title:
- ------------------------------
Print Name:
Signed and acknowledged ABN AMRO BANK N.V.,
in the presence of as Fiscal Agent
- ------------------------------ By:
Print Name: -------------------------------
Name:
Title:
- ------------------------------
Print Name:
Signed and acknowledged ABN AMRO BANK N.V.,
in the presence of as Fiscal Agent
- ------------------------------ By:
Print Name: -------------------------------
Name:
Title:
- ------------------------------
Print Name:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared _____________ , to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at Two World Financial Center,
New York, New York; that s/he is the _____________ of NOMURA ASSET SECURITIES
CORPORATION, a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ----------------------------
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of __________, duly commissioned and sworn,
personally appeared _____________________, to me known who, by me duly sworn,
did depose and acknowledge before me and say that s/he resides at
______________________________________; that s/he is the _____________________
of AMRESCO Mortgage Capital, 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: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________ )
) ss.:
COUNTY OF ________ )
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of _______, duly commissioned and sworn, personally
appeared _____________________, to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
__________________________________________ ; that s/he is the
____________________ of ___________________________, the general partner of
CRIIMI MAE Services Limited Partnership, the company 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: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of ________, duly commissioned and sworn, personally
appeared _____________________, to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
___________________________; that s/he is a ________________ of LASALLE NATIONAL
BANK, a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that he/her 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: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________ )
) ss.:
COUNTY OF ________ )
On this ____ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of __________________, duly commissioned and sworn,
personally appeared ___________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that s/he resides at
______________________________; that s/he is a _____________ of ABN AMRO BANK
N.V., a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of ___________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ----------------------------
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-1A
Pass-Through Rate: 6.28000 %
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1A Certificates: March 15, 2028
$511,492,100
CUSIP: 655356 JE4
Initial Certificate
Balance of this Certificate:
$
No.: A-1A-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-1A Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 hall 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1A Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1A Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1A Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1A
Certificate of the entire Percentage Interest represented by the within Class
A-1A Certificates to the above-named Assignee(s) and to deliver such Class A-1A
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _________________________________________________________
account number_________________________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-1B
Pass-Through Rate: 6.59000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1B Certificates: March 15, 2028
$1,786,155,716
CUSIP: 655356 JF1
Initial Certificate
Balance of this Certificate:
$
No.: A-1B-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, 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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
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Authorized Officer
Certificate of Authentication
This is one of the Class A-1B Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
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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:
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[Please print or type name(s)]
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Title
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Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-1C
Pass-Through Rate: 6.69000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1C Certificates: March 15, 2028
$382,686,304
CUSIP: 655356 JG9
Initial Certificate
Balance of this Certificate:
$
No.: A-1C-
This certifies that Cede & Co. 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 and
a second lien 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-CS1, Class PS-1, Class A-1E,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-8Z, Class B-1, Class B-2,
Class B-3, Class B-3SC, Class B-4, Class B-5, Class B-6, Class B-7, Class B-7H,
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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-1C Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto__________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1C Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1C
Certificate of the entire Percentage Interest represented by the within Class
A-1C Certificates to the above-named Assignee(s) and to deliver such Class A-1C
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _________________________________________________________
account number_________________________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
RESERVED
<PAGE>
EXHIBIT A-5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE 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 ONE OR MORE OTHER CLASSES OF
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-2
Pass-Through Rate: 6.76908%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: March 15, 2028
$223,361,177
CUSIP: 655356 JK0
Initial Certificate
Balance of this Certificate:
$
No.: A-2-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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. 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-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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number ________________________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 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 ONE OR MORE OTHER CLASSES OF
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-3
Pass-Through Rate: 6.97908%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-3 Certificates: March 15, 2028
$204,747,745
CUSIP: 655356 JL8
Initial Certificate
Balance of this Certificate:
$
No.: A-3-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-3 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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. 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-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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-3 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-3
Certificate of the entire Percentage Interest represented by the within Class
A-3 Certificates to the above-named Assignee(s) and to deliver such Class A-3
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number ________________________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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-4 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-4
Pass-Through Rate: 7.34908%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-4 Certificates: March 15, 2028
$167,520,883
CUSIP: 655356 JM6
Initial Certificate
Balance of this Certificate:
$
No.: A-4-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-4 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-4 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-4 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-4
Certificate of the entire Percentage Interest represented by the within Class
A-4 Certificates to the above-named Assignee(s) and to deliver such Class A-4
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number_________________________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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-5 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-5
Pass-Through Rate: 7.47908%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-5 Certificates: March 15, 2028
$55,840,294
CUSIP: 655356 JN4
Initial Certificate
Balance of this Certificate:
$
No.: A-5-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class A-5 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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. 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-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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:_________________________________________
Authorized Officer
Certificate of Authentication
This is one of the Class A-5 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as 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-5 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-5
Certificate of the entire Percentage Interest represented by the within Class
A-5 Certificates to the above-named Assignee(s) and to deliver such Class A-5
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_____________________________________________________________________________for
the account of _____________________________________________________________
account number ___________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
RESERVED
<PAGE>
EXHIBIT A-10
RESERVED
<PAGE>
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 THE CERTIFICATES 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS A-CS1
Pass-Through Rate: 1.64908%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class A-CS1 Certificates: March 15, 2028
$200,000,000
CUSIP: 655356 JH7
Initial Notional
Balance of this Certificate:
$
No.: A-CS1-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-CS1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 Class A-1A, Class A-1B, Class A-1C, Class PS-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and Class
LR Certificates (together with the A-CS1 Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of l986, as amended, 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
A-CS1 Certificates for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-CS1 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 days. The Interest Accrual Period with respect to the
Distribution Date occurring in April 1998 shall consist of the actual number of
11 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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-CS1 Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class A-CS1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-CS1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-CS1
Certificate of the entire Percentage Interest represented by the within Class
A-CS1 Certificates to the above-named Assignee(s) and to deliver such Class
A-CS1 Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ____________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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 THE CERTIFICATES 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS PS-1
Pass-Through Rate: 1.26511%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class PS-1 Certificates: March 15, 2028
$3,722,686,278.05
CUSIP: 655356 JJ3
Initial Notional
Balance of this Certificate:
$
No.: PS-1-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class PS-1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 Class A-1A, Class A-1B, Class A-1C, Class A-CS1, Class A-2, Class
A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and Class
LR Certificates (together with the PS-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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
PS-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 PS-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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 days. The Interest Accrual Period with respect to the
Distribution Date occurring in April 1998 shall consist of the actual number of
11 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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 PS-1 Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class PS-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class PS-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 PS-1
Certificate of the entire Percentage Interest represented by the within Class
PS-1 Certificates to the above-named Assignee(s) and to deliver such Class PS-1
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-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. 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.
THE CLASS B-1 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-1
Pass-Through Rate: 6.00000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-1 Certificates: March 15, 2028
$158,214,167
CUSIP: 655356 JP 9
Initial Certificate
Balance of this Certificate:
$
No.: B-1-
This certifies that Cede & Co. 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 and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class B-1 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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. 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 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
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:
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-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-1
Certificate of the entire Percentage Interest represented by the within Class
B-1 Certificates to the above-named Assignee(s) and to deliver such Class B-1
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number _______________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
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. 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.
THE CLASS B-2 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-2
Pass-Through Rate: 6.00000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-2 Certificates: March 15, 2028
$37,226,863
CUSIP: 655356 JQ 7
Initial Certificate
Balance of this Certificate:
$
No.: B-2-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class B-2 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-2 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. 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 B-2 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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-2 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-2
Certificate of the entire Percentage Interest represented by the within Class
B-2 Certificates to the above-named Assignee(s) and to deliver such Class B-2
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-15
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. 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.
THE CLASS B-3 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-3
Pass-Through Rate: 6.00000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-3 Certificates: March 15, 2028
$37,226,863
CUSIP: 655356 JR 5
Initial Certificate
Balance of this Certificate:
$
No.: B-3-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-3 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class B-3 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-3 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. 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 B-3 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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-3 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-3 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-3
Certificate of the entire Percentage Interest represented by the within Class
B-3 Certificates to the above-named Assignee(s) and to deliver such Class B-3
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
____________________________________________________________________________ for
the account of _____________________________________________________________
account number ___________________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-16
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. 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.
THE CLASS B-4 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-4
Pass-Through Rate: 6.00000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-4 Certificates: March 15, 2028
$65,147,010
CUSIP: 655356 JS 3
Initial Certificate
Balance of this Certificate:
$
No.: B-4--
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-4 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class B-4 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-4 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. 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 B-4 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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-4 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-4 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-4 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-4
Certificate of the entire Percentage Interest represented by the within Class
B-4 Certificates to the above-named Assignee(s) and to deliver such Class B-4
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_________________________________________________________________________ for
the account of _____________________________________________________________
account number ______________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-17
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. 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.
THE CLASS B-5 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-5
Pass-Through Rate: 6.00000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-5 Certificates: March 15, 2028
$18,613,431
CUSIP: 655356 JT 1
Initial Certificate
Balance of this Certificate:
$
No.: B-5--
This certifies that Cede & Co. 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-5 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class B-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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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-5 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 B-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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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
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 the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances previously made on
account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of a date not more
than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
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 survivor of the descendants 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-5 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-5 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-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 B-5
Certificate of the entire Percentage Interest represented by the within Class
B-5 Certificates to the above-named Assignee(s) and to deliver such Class B-5
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_________________________________________________________________________ for
the account of _____________________________________________________________
account number _____________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-18
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. 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.
THE CLASS B-6 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-6
Pass-Through Rate: 6.00000%
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-6 Certificates: March 15, 2028
$27,920,147
CUSIP: 655356 JU 8
Initial Certificate
Balance of this Certificate:
$
No.: B-6-
This certifies that Cede & Co. 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-6 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien 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 A-CS1, Class PS-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and
Class LR Certificates (together with the Class B-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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth 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-6 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 B-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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 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, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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-6 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-6 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-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 B-6
Certificate of the entire Percentage Interest represented by the within Class
B-6 Certificates to the above-named Assignee(s) and to deliver such Class B-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
<PAGE>
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.
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-7 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-7
Pass-Through Rate: 6.00000%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class B-7 Certificates: March 15, 2028
$46,533,578.05
CUSIP: 655356 JV 6
Initial Notional
Balance of this Certificate:
$
No.: B-7-
This certifies that Nomura Asset Securities Corporation 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-7 Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens and a second lien 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 Class A-1A, Class A-1B, Class A-1C, Class
A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7H, Class V-1, Class
V-2, Class R and Class LR Certificates (together with the Class B-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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
B-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 B-7 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate 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. 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.
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 therein that may be defective or inconsistent with any other
provisions in such agreements, (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 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, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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
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 the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances previously made on
account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of a date not more
than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
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 survivor of the descendants 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-7 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-7 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-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 B-7
Certificate of the entire Percentage Interest represented by the within Class
B-7 Certificates to the above-named Assignee(s) and to deliver such Class B-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
<PAGE>
EXHIBIT A-20
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-7H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS B-7H
Pass-Through Rate: 6.00000%*
*The Pass-Through Rate is for the Distribution Date occurring in April 1998. The
Pass-Through Rate for all subsequent Distribution Dates shall be calculated as
provided in the Pooling and Servicing Agreement.
First Distribution Date: Cut-off Date: March 30, 1998
April 17, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class B-7H Certificates: March 15, 2028
$46,533,578.05
CUSIP:
Initial Notional
Balance of this Certificate:
$
No.: B-7H-
This certifies that Nomura Asset Securities Corporation 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-7H Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens and a second lien 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 Class A-1A, Class A-1B, Class A-1C, Class
A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class V-1, Class
V-2, Class R and Class LR Certificates (together with the Class B-7H
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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
The 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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
B-7H 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 B-7H 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 other than the Distribution Date occurring on
April 17, 1998 commences on and includes the eleventh day of the month preceding
the month in which such Distribution Date occurs and ends on and includes 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
April 10, 1998. Each Interest Accrual Period other than the Interest Accrual
Period with respect to the Distribution Date occurring on April 17, 1998 is
assumed to consist of 30 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. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate 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. 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.
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 therein that may be defective or inconsistent with any other
provisions in such agreements, (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 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, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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-7H Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class B-7H Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-7H 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-7H
Certificate of the entire Percentage Interest represented by the within Class
B-7H Certificates to the above-named Assignee(s) and to deliver such Class B-7H
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_________________________________________________________________________ for
the account of _____________________________________________________________
account number _____________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-21
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. 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>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, Class V-1
CUSIP: Percentage Interest: 100%
No.: V-1-
This certifies that Nomura Asset Securities Corporation is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class V-1 Certificateholder is not entitled to interest or principal
distributions The Class V-1 Certificateholder will be entitled to receive
distributions of Net Default Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens and a second lien 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 A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-7H,
Class V-2, Class R and Class LR Certificates (together with the Class 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 March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents the right to receive Default Interest, subject
to the obligation to reimburse the Servicer, the Trustee or the Fiscal Agent, as
applicable, for interest on Advances, and such portion of the Trust Fund will be
treated as a grantor trust for federal income tax purposes.
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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate Net Default Interest, if any, allocable to the Class V-1 Certificates
for such Distribution Date, all as more fully described in the Pooling and
Servicing Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 therein that may be defective or inconsistent with any other
provisions in such agreements, (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 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, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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
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 the Pooling and Servicing Agreement, without
the consent of the Holders of all Certificates representing
all of the Percentage Interests of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances previously made on
account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer as of a date not more
than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class V-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class V-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class V-1
Certificate of the entire Percentage Interest represented by the within Class
V-1 Certificates to the above-named Assignee(s) and to deliver such Class V-1
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_________________________________________________________________________ for
the account of _____________________________________________________________
account number _____________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-22
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. 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>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS V-2
Percentage Interest: 100%
CUSIP:
No.: V-2-
This certifies that Nomura Asset Securities Corporation is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class V-2 Certificateholder is not entitled to interest or principal
distributions The Class V-2 Certificateholder will be entitled to receive
distributions of Excess Interest received from the borrowers. The Trust Fund,
described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens and a second lien 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 A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-7H,
Class V-1, Class R and Class LR Certificates (together with the Class V-2
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents the right to receive Excess Interest, which
portion of the Trust Fund will be treated as a grantor trust for federal income
tax purposes.
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 fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate Excess Interest, if any, allocable to the Class V-2 Certificates for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 therein that may be defective or inconsistent with any other
provisions in such agreements, (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 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, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class V-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class V-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class V-2
Certificate of the entire Percentage Interest represented by the within Class
V-2 Certificates to the above-named Assignee(s) and to deliver such Class V-2
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_________________________________________________________________________ for
the account of _____________________________________________________________
account number _____________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-23
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 UPPER-TIER 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 (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 OR (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 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 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. 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>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS R
CUSIP: 655356 JW 4 Percentage Interest: 100%
No.: R--
This certifies that Nomura Asset Securities Corporation is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class R Certificateholder is not entitled to interest or principal
distributions. The Class R Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Upper-Tier REMIC, if any, on the Final
Scheduled Distribution Date for the Certificates, after distributions in respect
of any accrued but unpaid interest on the Certificates and after distributions
in reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens and a second lien 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 A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-7H,
Class V-1, Class V-2 and Class LR Certificates (together with the Class R
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreements; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). 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. 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.
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 therein that may be defective or inconsistent with any other
provisions in such agreements, (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 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, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class R Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
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
<PAGE>
EXHIBIT A-24
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 LOWER-TIER 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 (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 OR (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 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 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. 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>
NOMURA ASSET SECURITIES CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D6, CLASS LR
CUSIP: Percentage Interest: 100%
No.: LR--
This certifies that Nomura Asset Capital Corporation is the registered
owner of the Percentage Interest evidenced by this Certificate in the Trust
Fund. The Class LR Certificateholder is not entitled to interest or principal
distributions. The Class LR Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Lower-Tier REMIC, if any, on the Final
Scheduled Distribution Date for the Certificates, after distributions in respect
of any accrued but unpaid interest on the Certificates and after distributions
in reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Lower-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1A, Class A-1B, Class A-1C, Class A-CS1, Class PS-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2 and Class R Certificates
(together with the Class LR Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling
and Servicing Agreement"), by and among Nomura Asset Securities Corporation, as
Depositor, AMRESCO Services, L.P., as Servicer, CRIIMI MAE Services Limited
Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. 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 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 R
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 the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to 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 given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the 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 Agreements and Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing (other than
any interest earned on deposits in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest
belongs to the related Borrower). As provided in the Pooling and Servicing
Agreement, withdrawals may be made from certain of the above-accounts for
purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the 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. 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.
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 therein that may be defective or inconsistent with any other
provisions in such agreements, (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 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, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent with the consent of the Holders of 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 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 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 the
Pooling and Servicing Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected hereby;
(iii) alter the Servicing Standard set forth in the Pooling and
Servicing Agreement 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 of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing 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 the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of the Trust REMIC as two separate REMICs, or to
prevent the imposition of any additional material state or local taxes, at all
times that any Certificates are outstanding; provided, however, that such
action, as evidenced by an Opinion of Counsel (obtained at the expense of the
Trust Fund), is necessary or helpful to maintain such qualification or to
prevent the imposition of any such taxes, and would not adversely affect in any
material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer 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 either (a) 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 or (b) if outstanding Mortgage Loans remaining in the Trust Fund consist
solely of the Circuit City Credit Lease Loans, Carmax Credit Lease Loans and/or
the Parkview House Apartments Loan) 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 (less any P&I Advances
previously made on account of principal);
(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 (less any P&I
Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees
and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of a date not more than 30 days
prior to the last day of the month preceding such Distribution
Date, together with one month's interest thereon at the Mortgage
Rate.
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 survivor of the descendants 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:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:-----------------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class LR Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class LR
Certificate of the entire Percentage Interest represented by the within Class LR
Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Date:
-------------- ------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:__________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Distributions, if be made by wire transfer in immediately available funds to
_________________________________________________________________________ for
the account of _____________________________________________________________
account number _____________________________________.
This information is provided by ________________________________________________
the Assignee(s) named above, or ________________________________________________
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
__________________, being first duly sworn, deposes and says:
1. That he/she is a ______________ of ____________ ______________________
(the "Purchaser"), a ___________ duly organized and existing under the laws of
the State of ________, on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ___________.
3. That the Purchaser of the Nomura Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D6, 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 March 30, 1998, by
and among Nomura Asset Securities Corporation, as depositor, AMRESCO Services,
L.P., as servicer, CRIIMI MAE Services Limited Partnership, as special servicer,
LaSalle National Bank, as trustee, and ABN AMRO Bank N.V., as fiscal agent (the
"Pooling and Servicing Agreement")), or is acquiring the Class [R] [LR]
Certificate for the account of, or as agent (including as a broker, nominee, or
other middleman) for, a Permitted Transferee and has received from such person
or entity an affidavit substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR] Certificate to
any person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit or as to which the Purchaser has
actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or
paragraph 7 hereof are not satisfied or that the Purchaser has reason to know
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC][Lower-Tier REMIC], the Purchaser agrees to act
as "tax matters person" and to perform the functions of "tax matters partner" of
the [Upper-Tier REMIC][Lower-Tier REMIC] pursuant to Section 4.04 of the Pooling
and Servicing Agreement, and agrees to the irrevocable designation of the
Trustee as the Purchaser's agent in performing the function of "tax matters
person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the provisions of
Section 5.02 of the Pooling and Servicing Agreement concerning registration of
the transfer and exchange of the Class [R] [LR] Certificate.
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 ________ day of _________________,
199_.
[Purchaser]
By:______________________
Title:
Name:
<PAGE>
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 _______ day of ___________________,
199_.
- ------------------------------
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _________
My commission expires the ________ day of ________________, 199_.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Re: Nomura Asset Securities Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-D6, Class [R][LR], Class [R][LR]
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 or 7 thereof is not true.
Very truly yours,
[Transferor]
----------------------------
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Nomura Asset Securities Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Marlyn Marincas
Re: Transfer of Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of March 30, 1998 (the "Pooling and Servicing
Agreement"), by and among Nomura Asset Securities Corporation, as depositor,
AMRESCO Services, L.P., as servicer, CRIIMI MAE Services Limited Partnership, as
special servicer, LaSalle National Bank, as trustee (the "Trustee"), and ABN
AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), on behalf of the holders
of Nomura Asset Securities Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-D6 (the "Certificates") in connection with the
transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of [$_______________ aggregate Certificate Balance] [___%
Percentage Interest] of Class Certificates (such registered interest being the
"Certificate"). Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows [check one of the following]:
| | [For Institutional Accredited Investors only] We are an
"institutional accredited investor" (an entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act of 1933, as amended (the "Securities
Act")) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of our investment in the Certificate, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment. We are acquiring the
Certificate purchased by us for our own account or for one or
more accounts (each of which is an "institutional accredited
investor") as to each of which we exercise sole investment
discretion. The Purchaser hereby undertakes to reimburse the
Trust for any costs incurred by it in connection with this
transfer.
| | [For Qualified Institutional Buyers only] The Purchaser is a
"qualified institutional buyer" within the meaning of Rule 144A
("Rule 144A") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser is aware that the
transfer is being made in reliance on Rule 144A, and the
Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
| | [For Affiliated Persons Only] The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of
such a person, as defined in Rule 405 of the Securities Act of
1933, as amended (the "Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, or (ii) to "institutional
accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the Securities Act, pursuant to any other
exemption from the registration requirements of the Securities Act, subject in
the case of this clause (ii) to (a) the receipt by the Certificate Registrar of
a letter substantially in the form hereof, (b) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the Securities
Act, (c) the receipt by the Certificate Registrar of such other evidence
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act and other applicable laws, and
(d) a written undertaking to reimburse the Trust for any costs incurred by it in
connection with the proposed transfer. It understands that the Certificate (and
any subsequent Individual Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
4. The Purchaser has reviewed the Private Placement Memorandum dated March
30, 1998, 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 Trustee (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies
of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated IRS Forms W-8 or IRS
Forms 4224, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership (except to the
extent provided in applicable Treasury Regulations) or other entity created or
organized in or under the laws of the United States or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or a trust if 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, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
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: ____ __, ____
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
__________ ___, _____
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Nomura Asset Securities Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Marlyn Marincas
Re: Nomura Asset Securities Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D6, Class [A-2]
[A-3][A-4][A-5][B-1][B-2][B-3][B-4][B-5][B-6][B-7][B-7H]
[V-1][V-2][R][LR]
Ladies and Gentlemen:
_____________________________ (the "Purchaser") intends to purchase from
__________________________ (the "Seller") $__________ initial Certificate
Balance or _____% Percentage Interest of Nomura Asset Securities Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D6, Class
[A-2][A-3][A-4][A-5][B-1][B-2][B-3] [B-4][B-5][B-6][B-7][B-7H][V-1][V-2][R][LR],
CUSIP No. _______-________ (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
March 30, 1998, by and among Nomura Asset Securities Corporation, as depositor
(the "Depositor"), AMRESCO Services, L.P., as servicer, CRIIMI MAE Services
Limited Partnership, as special servicer, LaSalle National Bank, as trustee (the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent. 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 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 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 by or on behalf of a Plan 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 and the Code or
Similar Law, and will not constitute or result in a prohibited transaction
within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the
Code, and will not subject the Servicer, the Depositor, the Trustee or the
Certificate Registrar to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code), which Opinion of Counsel
shall not be at the expense of the Servicer, the Depositor, the Trustee or the
Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA Representation
Letter on ________________ _____, ____.
Very truly yours,
---------------------------------------------
By:
------------------------------------------
Name:
Title:
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
Name of Mortgagor: ___________________
Servicer
Loan No.: ___________________
Custodian/Trustee
Name: ___________________
Address: ___________________
Custodian/Trustee
Mortgage File No.: ___________________
Depositor
Name: ___________________
Address: ___________________
Certificates: Nomura Asset Securities
Corporation, Commercial
Mortgage Pass-Through
Certificates, Series
1998-D6
The undersigned Servicer hereby acknowledges that it has received from
LaSalle National Bank, as Trustee for the Holders of Nomura Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-D6, 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 March 30, 1998, by and among the Trustee, ABN AMRO Bank N.V., as
fiscal agent, Nomura Asset Securities Corporation, as depositor, and AMRESCO
Services, L.P., as servicer and CRIIMI MAE Services Limited Partnership, as
special servicer.
( ) Promissory Note dated , 199__, in the original principal sum of $ ,
made by --------------- -------- , payable to, or endorsed to the
order of, the Trustee. --------------
( ) Mortgage recorded on as instrument no. in the County Recorder's
--------------------- -------------- Office of the County of , State
of in book/reel/docket ---------------- ------------------- of
official records at page/image .
( ) Deed of Trust recorded on as instrument no. in the County Recorder's
---------------- ------------- Office of the County of , State of in
book/reel/docket ------------------ ------------ of official records
at page/image . --------------
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on as
------------------------ instrument no. in the County Recorder's
Office of the County of , ------------- ----------------------- State
of in book/reel/docket of official records at page/image
---------------- ----------------- .
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( )
( )
( )
( )
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the Documents in
trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Servicer shall not cause or permit the Documents to become
subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights
of set-off to or against the Documents or any proceeds thereof.
(3) The Servicer shall return the Documents to the Custodian when the
need therefor no longer exists, unless the Mortgage Loan relating
to the Documents has been liquidated and the proceeds thereof
have been remitted to the Collection Account and except as
expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Servicer
shall at all times be earmarked for the account of the Trustee,
and the Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Servicer's
possession, custody or control.
AMRESCO SERVICES, L.P.
By:
------------------------------
Title:
---------------------------
Date:_________________, 19____
<PAGE>
EXHIBIT F
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT, dated as of [ ] by and among [NAME OF CUSTODIAN],
as Custodian (the "Custodian"), AMRESCO Services, L.P., as servicer (the
"Servicer"), CRIIMI MAE Services Limited Partnership, as special servicer (the
"Special Servicer"), and LaSalle National Bank, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Servicer, the Special Servicer and the Trustee are parties to
a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of March 30, 1998, among Nomura Asset Securities Corporation, as Depositor,
the Servicer, the Special Servicer, the Trustee and ABN AMRO Bank N.V., as
Fiscal Agent, relating to Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6 (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 Services, L.P. 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 CRIIMI MAE Services Limited Partnership is the Servicer, AMRESCO
Services, L.P. 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 SERVICES, L.P.,
as Servicer
By: AMRESCO MORTGAGE CAPITAL, INC.,
its General Partner
By:___________________________________________
Name:_________________________________________
Title:________________________________________
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
as Special Servicer
By: CRIIMI MAE, Inc.,
its General Partner
By:___________________________________________
Name:_________________________________________
Title:________________________________________
LASALLE NATIONAL BANK,
as Trustee
By:___________________________________________
Name:_________________________________________
Title:________________________________________
<PAGE>
EXHIBIT G
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, (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.
<PAGE>
EXHIBIT H
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "Agreement") dated as
of March 30, 1998, is between Nomura Asset Securities 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 are described and set forth in the Mortgage Loan
Schedule attached as Exhibit B-1 to the Pooling and Servicing Agreement dated as
of March 30, 1998 (the "Pooling and Servicing Agreement"), among the Company,
AMRESCO Services, L.P., as servicer (the "Servicer"), CRIIMI MAE Services
Limited Partnership, as special servicer, LaSalle National Bank, as trustee (the
"Trustee") and ABN AMRO Bank N.V., as fiscal agent, relating to the issuance of
the Nomura Asset Securities Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1998-D6 (the "Certificates"). The Certificates will consist
of twenty-one classes: the "Class A-1A Certificates," the "Class A-1B
Certificates," the "Class A-1C Certificates," the "Class A-CS1 Certificates,"
the "Class PS-1 Certificates," the "Class A-2 Certificates," the "Class A-3
Certificates," the "Class A-4 Certificates," and the "Class A-5 Certificates"
(collectively, the "Offered Certificates"), the "Class B-1 Certificates," the
"Class B-2 Certificates," the "Class B-3 Certificates," the "Class B-4
Certificates," the "Class B-5 Certificates," the "Class B-6 Certificates," the
"Class B-7 Certificates" and the "Class R Certificates" (collectively, the
"Private Certificates"), the "Class B-7H Certificates," the "Class V-1
Certificates" and the "Class V-2 Certificates" (the "Retained Certificates," and
together with the Offered Certificates, the Private Certificates and the Class
LR Certificates, the "Certificates"). Capitalized terms used without definition
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement or, if not defined therein, in the Underwriting Agreement,
dated March 27, 1998 (the "Underwriting Agreement"), by and among the Company,
Nomura Securities International, Inc. ("NSI"), Morgan Stanley & Co. Incorporated
("Morgan Stanley") and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch" and together with NSI and Morgan Stanley, the "Underwriters").
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 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.
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 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. All of the
Mortgage Loans (other than the Westin Casuarina Resort Loan which is being
transferred without the related servicing) are being transferred with servicing.
In addition, as of the Closing Date, the Seller hereby transfers, assigns,
sets over and otherwise conveys to the Company all the right, title and interest
of the Seller in and to the mortgage loan purchase agreement (the "Bloomfield
Mortgage Loan Purchase Agreement"), dated as of May 16, 1994, by and between the
Seller and Bloomfield Acceptance Company, LLC ("Bloomfield"), insofar as such
rights relate to the Mortgage Loans including, but not limited to, the
obligations of Bloomfield pursuant to the Bloomfield Mortgage Loan Purchase
Agreement to repurchase Mortgage Loans with respect to which there exists a
breach of one or more of Bloomfield's representations and warranties made in the
Bloomfield Mortgage Loan Purchase Agreement. The Company hereby directs the
Seller, and the Seller hereby agrees, to deliver to the Trustee all documents,
instruments and agreements required to be delivered by the Company to the
Custodian on behalf of the Trustee under the Pooling and Servicing Agreement and
such other documents, instruments and agreements as the Company or the Trustee
shall reasonably request.
2. Representations and Warranties. (a) The Seller hereby represents and
warrants to the Company as of the Closing Date that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with full
power and authority to carry on its business as presently
conducted by it;
(ii) The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and
has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby, including,
but not limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with this Agreement;
(iii) Assuming the due authorization, execution and delivery of this
Agreement by the Company, this Agreement and all of the
obligations of the Seller hereunder are the legal, valid and
binding obligations of the Seller, enforceable in accordance with
the terms of this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance
of its obligations hereunder by the Seller does not conflict with
any provision of any law or regulation to which the Seller is
subject, or conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of any
agreement or instrument to which the Seller is a party or by which
it is bound, or any order or decree applicable to the Seller, or
result in the creation or imposition of any lien on any of the
Seller's assets or property, which would materially and adversely
affect the ability of the Seller to carry out the transactions
contemplated by this Agreement. The Seller has obtained any
consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery
and performance by the Seller of this Agreement; and
(v) There is no action, suit or proceeding pending against the Seller
in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
ability of the Seller to carry out its obligations under this
Agreement or have a material adverse effect on the financial
condition of the Seller or the ability of the Seller to perform
its obligations under this Agreement.
(b) The Seller hereby represents and warrants with respect to each Mortgage
Loan that as of the date specified below or, if no such date is specified, as of
the Closing Date:
(i) Immediately prior to the sale, transfer and assignment to
the Company, each related Note and Mortgage was not subject
to an assignment (other than to the Seller) or pledge, and
the Seller had good and marketable title to, and was the
sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the
Company constitutes a legal, valid and binding assignment of
such Mortgage;
(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 the
matters described in clause (xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and Rents
(if any) and other agreement executed in connection with
such Mortgage Loan are legal, valid and binding obligations
of the related Borrower, enforceable in accordance with
their terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights
generally, or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and to the best of the Seller's knowledge,
there is no valid defense, counterclaim, right of rescission
or right of set-off or abatement available to the related
Borrower with respect to such Note, Mortgage and other
agreements;
(v) Each related Assignment of Leases and Rents creates a valid,
collateral or first priority assignment of, or a valid first
priority security interest in, certain rights under the
related lease, subject only to a license granted to the
related Borrower to exercise certain rights and to perform
certain obligations of the lessor under such lease,
including the right to operate the related Mortgaged
Property; no person other than the related Borrower owns any
interest in any payments due under such lease that is
superior to or of equal priority with the mortgagee's
interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Company and any related Reassignment of Assignment of Leases
and Rents, if any, or assignment of any other agreement
executed in connection with such Mortgage Loan, from the
Seller to the Company constitutes the legal, valid and
binding assignment from the Seller to the Company, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights
generally, or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(vii) Since origination, and except as set forth in the related
Mortgage File, 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
which materially interferes with the security intended to be
provided by such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property, and such Mortgaged
Property (subject to the matters described in clause (xi)
below), 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) Except with respect to the Mortgage Loan secured by the
Mortgaged Property known as the Westin Casuarina Resort
Property, which has a Certificate of Title from the Grand
Cayman Island government, 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 Seller, its
successors and assigns, or the holder of the related Note as
to a valid and 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), 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 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; such policy is
assignable to the Company without the consent of or any
notification to the insurer, and is in full force and effect
upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy
and the Seller has not done anything, by act or omission,
and the Seller has no knowledge of any matter, which would
impair or diminish the coverage of such policy; 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
and there is no requirement for future advances thereunder
and the Seller covenants that it will not make any future
advances under the Mortgage Loan to the related Borrower;
(xiii) Each related Mortgaged Property is free of any material
damage that would affect materially and adversely the value
of such Mortgaged Property as security for the Mortgage Loan
and there is no proceeding pending for the total or partial
condemnation of such Mortgaged Property;
(xiv) Each of the related Borrowers (and, if the related Mortgaged
Property is secured by a senior housing or healthcare
facility, each of the operators of such facility) is in
possession of all material licenses, permits and other
authorizations necessary and required by all applicable laws
for the conduct of its business and all such licenses,
permits and authorizations are valid and in full force and
effect, and if a related Mortgaged Property is improved by a
healthcare facility, the most recent inspection or survey by
governmental authorities having jurisdiction in connection
with such licenses, permits and authorizations did not cite
such Mortgaged Property for material violations (which shall
include only "Level A" violations or the equivalent, in the
case of skilled nursing facilities, that have not been
cured); and if a related Mortgaged Property is improved by a
hotel, the most recent inspection or review by the
franchisor, if any, did not cite such Mortgaged Property for
material violations of the related franchise agreement which
have not been cured;
(xv) The Seller or, to the best of Seller's knowledge, Bloomfield
has inspected or caused to be inspected each related
Mortgaged Property within the past 12 months preceding the
Cut-off Date or within 1 month of origination of the
Mortgage Loan;
(xvi) Such Mortgage Loan does not have a shared appreciation
feature, other contingent interest feature or negative
amortization;
(xvii) Except with respect to the Park LaBrea Loan, the Springfield
Mall Loan, the Atlanta Marriott Marquis Hotel Loan and the
Westin Casuarina Resort Loan, each of which has another pari
passu loan from the Seller secured by the related Mortgaged
Property (which other loan is not included in the Trust
Fund), such Mortgage Loan is a whole loan and no other party
holds an interest in the Mortgage Loan;
(xviii) (A)The Mortgage Rate (exclusive of any default interest, late
charge or yield maintenance charge) of such Mortgage Loan
complied as of the date of origination with, or is exempt
from, applicable state or federal laws, regulations and
other requirements pertaining to usury; any and all other
requirements of any federal, state or local laws, including,
without limitation, truth-in-lending, real estate settlement
procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with as
of the date of origination of such Mortgage Loan and (B) the
Seller has received an opinion that such Mortgage Loan is
not usurious;
(xix) (A) With respect to each Mortgage Loan originated by the
Seller, no fraudulent acts were committed by the Seller
during the origination process of such Mortgage Loan and the
origination, servicing and collection of each Mortgage Loan
is in all respects legal, proper and prudent in accordance
with customary industry standards and (B) with respect to
each Mortgage Loan originated by Bloomfield, to the best of
the Seller's knowledge, no fraudulent acts were committed by
Bloomfield during the origination process of such Mortgage
Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent
in accordance with customary industry standards;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of, each
related Mortgaged Property have been paid or an escrow of
funds in an amount sufficient to cover such payments has
been established;
(xxi) All escrow deposits and payments required pursuant to the
Mortgage Loans are in the possession, or under the control,
of the Seller or its agent and there are no deficiencies in
connection therewith and all such escrows and deposits have
been conveyed by the Seller to the Company and identified as
such with appropriate detail;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and do
business in the jurisdiction in which each related Mortgaged
Property is located at all times when it held the Mortgage
Loan;
(xxiii) (A)Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer
meeting the requirements under the related Mortgage Loan 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, except
the CarMax Credit Lease Loans and the Circuit City Credit
Lease Loans, under which the related Mortgaged Properties
are self-insured by the related Credit Tenant, and except
with respect to certain portions of certain Mortgaged
Properties in which a Credit Tenant self-insures for its
portion of such Mortgaged Property;
(B) Each related Mortgaged Property is covered by business
interruption insurance (for at least 12 months of rent
interruptions) (except the Mortgaged Properties
securing the CarMax Credit Lease Loans and the Circuit
City Credit Lease Loans which do not have business
interruption insurance) and each Mortgaged Property is
covered by comprehensive general liability insurance in
amounts generally required by institutional lenders for
similar properties;
(C) All premiums on any insurance policies required to be
paid as of the date hereof have been paid;
(D) The insurance policies require prior notice to the
insured of termination or cancellation, and no such
notice has been received; and
(E) 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 which,
with the passage of time or with notice and the expiration
of any grace or cure period, would and does constitute a
default, breach, violation or event of acceleration;
(xxv) Such Mortgage Loan has not been 30 days or more delinquent
since origination and as of the Cut-off Date was not
delinquent;
(xxvi) Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable,
non-judicial foreclosure, and there is no exemption
available to the Borrower which would interfere with such
right to foreclose. To the best of the Seller's knowledge,
no Borrower is a debtor in a state or federal bankruptcy or
insolvency preceding;
(xxvii) In each related Mortgage or Loan Agreement (except with
respect to the Mortgage Loan known as SL Hillside), 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. A Phase I
environmental report was conducted by a reputable
environmental engineer in connection with such Mortgage
Loan, which report does not indicate any material
non-compliance or material existence of Hazardous Materials,
except as disclosed in the Prospectus Supplement to the
Prospectus, each dated March 27, 1998, under "Risk
Factors--The Mortgage Loans--Environmental Law
Considerations." To the best of the Seller's knowledge, each
related Mortgaged Property, except as disclosed in the
Prospectus, is in material compliance with all applicable
federal, state and local laws pertaining to environmental
hazards, and to the best of Seller's knowledge, no notice of
violation of such laws has been issued by any governmental
agency or authority; the Seller has not taken any action
which would cause the related Mortgaged Property not to be
in compliance with all federal, state and local laws
pertaining to environmental hazards;
(xxviii) Each related Mortgage or Loan Agreement contains provisions
for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or Loan Agreement or obtaining
the prior written consent of the Mortgagee or the
satisfaction of certain conditions, the related Mortgaged
Property, or any interest therein, is directly or indirectly
transferred or sold, or encumbered in connection with
subordinate financing and each related Mortgage prohibits
the pledge or encumbrance of the Mortgaged Property without
the consent of the holder of the Mortgage Loan;
(xxix) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and
(2) the fair market value of such real property was at least
equal to 80% of the principal amount of the Mortgage Loan
(a) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage
Loan was not in default or default with respect thereto was
not reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first
be reduced by (A) the amount of any lien on the real
property interest that is senior to the Mortgage Loan
(unless such senior lien also secures a Mortgage Loan, in
which event the computation described in (a) and (b) shall
be made on an aggregated basis) and (B) a proportionate
amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event
the computation described in (a) and (b) shall be made on an
aggregate basis). All improvements included for MAI
appraisals are within the boundaries of the related
Mortgaged Property;
(xxx) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage,
or any substantially similar successor provision);
(xxxi) The mortgage loan schedule which is an exhibit to the
Pooling and Servicing Agreement is complete and accurate in
all respects;
(xxxii) Except with respect to the Mortgaged Properties known as SL
Hillside (in which approximately 2-3% of the related
Mortgaged Property is used for a purpose which is not a
conforming use or a legal non-conforming use) and Reservoir
Nursing Home (which is in violation of certain state
requirements relating to the number of beds at the
facility), each Mortgaged Property is in compliance, in all
material respects, with all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged
Property. All inspections, licenses and certificates
required, including certificates of occupancy (if
applicable), whether by law, ordinance, regulation or
insurance standards to be made or issued with regard to the
Mortgaged Property, have been obtained and are in full force
and effect;
(xxxiii) (A) Except as disclosed on Exhibit A attached hereto, each
Borrower is an entity whose organizational documents provide
that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a single-purpose entity.
(For this purpose, "single-purpose entity" shall mean a
person, other than an individual, which is formed or
organized solely for the purpose of owning and operating a
single property (other than the borrower under the Andover
Park Mortgage Loan which owns an undeveloped parcel adjacent
to the related Mortgaged Property), does not engage in any
business unrelated to such property and its financing, does
not have any assets other than those related to its interest
in the property or its financing, or any indebtedness other
than as permitted by the related Mortgage or the other Loan
Documents, has its own books and records and accounts
separate and apart from any other person, and holds itself
out as being a legal entity, separate and apart from any
other person);
(B) Except with respect to the six loans to affiliated
borrowers (including the Coach House Loan) identified
on Exhibit B hereto as borrower affiliation number 3, a
non-consolidation opinion was obtained for each
Borrower or group of affiliated Borrowers in which the
Cut-off Date Principal Balance of the Mortgage Loan or
Loans, as applicable, have an aggregate Cut-off Date
Principal Balance in excess of $20,000,000;
(C) Except with respect to the six loans to affiliated
borrowers (including the Coach House Loan) identified
on Exhibit B hereto as borrower affiliation number 3
and except with respect to the Value City Credit Lease
Loans, the organizational documents for each Borrower
or group of affiliated Borrowers under a Mortgage Loan
or Loans having a Cut-off Date Principal Balance in
excess of $25,000,000 require that the Board of
Directors of the Borrower or Borrowers, as applicable,
its corporate general partner, or managing member, as
applicable, include an independent director;
(xxxiv) With respect to any Mortgage Loan where a material portion
of the estate of the related Borrower therein is a leasehold
estate and the fee interest of the ground lessor is not
subject and subordinate to the related Mortgage, the Seller
represents and warrants that:
(A) The ground lease or a memorandum regarding it has been
duly recorded. The ground lease permits the interest of
the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged
Property by such lessee, its successors or assigns in a
manner that would adversely affect the security
provided by the related Mortgage. There has been no
material change in the terms of such ground lease since
its recordation, except by written instruments, all of
which are included in the related Mortgage File;
(B) Except with respect to the ground leases for the
Mortgage Loans known as Westin Casuarina Resort,
Bristol I-New Orleans French Quarter and Monterey Plaza
Hotel Property, the lessor under such ground lease has
agreed in writing and included in the related Mortgage
File that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee and that any such
action without such consent is not binding on the
mortgagee, its successors or assigns;
(C) Except with respect to the Mortgaged Property securing
the FAC Realty Loan, known as Boaz, and except with
respect to the Headquarters Plaza Loan, each of which
related ground lease expires four years following the
maturity date of such Mortgage Loan (and both of which
have loan documents that require the related borrower
to purchase such Mortgaged Property, in the case of
Boaz, the Purchase Price has been escrowed with the
Trustee and in the case of Headquarters Plaza the
Purchase Price is $1.00), the ground lease has an
original term (or an original term plus one or more
optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the
mortgagee) that extends not less than 10 years beyond
the stated maturity of the related Mortgage Loan;
(D) The ground lease is prior to any mortgage or other lien
upon the related fee interest and the landlord has not
entered into an agreement to subordinate the ground
lease to future mortgages or liens on the fee interest.
(E) Except with respect to the ground leases for Stanford
Park Hotel, the ground lease is assignable to the
mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder.
(F) As of the date of hereof, the ground lease is in full
force and effect and no default has occurred, nor is
there any existing condition which, but for the passage
of time or giving of notice, would result in a default
under the terms of the ground lease;
(G) Except with respect to the Mortgaged Property known as
the Westin Casuarina Resort Property, the ground lease
or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any
default by the lessee to the mortgagee;
(H) Except with respect to the Mortgaged Property known as
the Westin Casuarina Resort Property, a mortgagee is
permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the
interest of the lessee under the ground lease through
legal proceedings, or to take other action so long as
the mortgagee is proceeding diligently) to cure any
default under the ground lease which is curable after
the receipt of notice of any default before the lessor
may terminate the ground lease. All rights of the
mortgagee under the ground lease and the related
Mortgage (insofar as it relates to the ground lease)
may be exercised by or on behalf of the mortgagee;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially
unreasonable by an institutional investor. The lessor
is not permitted to disturb the possession, interest or
quiet enjoyment of any subtenant of the lessee in the
relevant portion of the Mortgaged Property subject to
the ground lease for any reason, or in any manner,
which would adversely affect the security provided by
the related Mortgage;
(J) The ground lease provides that any related insurance
proceeds or condemnation award (other than in respect
of a total or substantially total loss or taking) will
be applied either to the repair or restoration of all
or part of the related Mortgaged Property with the
mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as repair or
restoration progresses (except with respect to the
ground lease for the Value City Credit Lease Loans,
known as 3080/3232 Alum Creek Drive and One Mall Road,
under which the related Credit Tenant may, under
certain circumstances, hold and disburse insurance
proceeds), or, if permitted by the related ground
lease, to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued
interest, except that in the case of condemnation
awards, the ground lessor is entitled to an amount of
such award generally based on the value of the
unimproved land taken;
(K) Except with respect to the ground leases for the
Burnham Pacific-Golden State Discovery Plaza Property,
the Bristol I-Holiday Inn-Houston Medical Center
Property and the Bristol I-New Orleans French Quarter
Property (under each of which the proceeds must be used
to rebuild the related Mortgaged Property), under the
terms of the ground lease and the related Mortgage, any
related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or
taking of the related Mortgaged Property will be
applied first to the payment of the outstanding
principal balance of the Mortgage Loan, together with
any accrued interest (except where contrary to
applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any
institutional investor, taking into account the
relative duration of the ground lease and the related
Mortgage and the ratio of the market value of the
related Mortgage property to the outstanding principal
balance of such Mortgage Loan. Until the principal
balance and accrued interest rate are paid in full,
neither the lessee nor the lessor under the ground
lease will have the option to terminate or modify the
ground lease without prior written consent of the
mortgagee as a result of any casualty or partial
condemnation, except to provide for an abatement of the
rent;
(L) Except with respect to the ground leases for the
Mortgaged Properties know as Bristol I-New Orleans
French Quarter, Santiago Creekside Estate and Ramon
Park, MHP, the ground lease requires the lessor to
enter into a new lease upon the termination of the
ground lease or upon rejection of the ground lease in a
bankruptcy proceeding; and
(M) The rent due under the ground lease for the Westin
Casuarina Resort Property has been fully paid for the
full term of the lease.
(xxxv) With respect to the Mortgaged Properties that have
earthquake, windstorm or flood insurance, as of the Cut-off
Date, such insurance is required to be maintained until the
principal balance of the related Mortgage Loan is paid in
full;
(xxxvi) With respect to Mortgage Loans that are
cross-collateralized, except with respect to the Park LaBrea
Loan, the Springfield Mall Loan, the Atlanta Marriott
Marquis Hotel Loan and the Westin Casuarina Resort Loan
(each of which is cross-collateralized pursuant to a pari
passu note which is not included in the Trust Fund), all
other loans that are cross-collateralized by such Mortgage
Loans are included in the Mortgage Pool;
(xxxvii) Except with respect to the Mortgage Loans known as the
Cinemark Credit Lease Loans, the Oxford Center Loan, the
Abilene & Sunset Loans, the Colonial Park Mall Loan, the
Best Buy Credit Lease Loan and the Pierson Portfolio Loan
(in which an affiliate of the Seller has an equity interest
in the related Borrower or the direct parent of such
Borrower), neither the Seller nor any affiliate thereof has
any obligation or right to make any capital contribution to
any Borrower under a Mortgage Loan, other than contributions
made on or prior to the Closing Date.
(xxxviii) Except as disclosed on Exhibit B attached hereto, no
Borrower under a Mortgage Loan is an affiliate of a Borrower
under any other Mortgage Loan;
(xxxix) After receipt of the Purchase Price, the Seller has no right
of set-off with respect to the transfer of the Mortgage
Loans to the Company;
(xl) With respect to each Mortgage Loan originated by Bloomfield:
(A) Such Mortgage Loan was underwritten in accordance with
standards established by the Seller, using application
forms and related credit documents approved by the
Seller;
(B) The Seller approved each application and related credit
documents before a commitment by Bloomfield was issued,
and no such commitment was issued until the Seller
agreed to fund such loan;
(C) The closing documents for such Mortgage Loan were
prepared on forms approved by the Seller, and reflect
the Seller as the successor and assign to Bloomfield;
and
(D) Such Mortgage Loan was actually funded by the Seller,
and was assigned to the Seller at the closing;
(xli) With respect to each Mortgage Loan secured by a Credit
Lease:
(A) Except with respect to the Best Buy Credit Lease Loan
(for which the related Borrower has obtained Residual
Value Insurance and a Lease Enhancement Policy, the
premiums for which have been paid in full) and the
Eckerd Credit Lease Loan (for which the related
Borrower has obtained a Lease Enhancement Policy, the
premiums for which has been paid in full), the rental
payments under the Credit Lease are equal to or greater
than the payments due under the loan documents, and are
payable without notice or demand, and without setoff,
counterclaim, recoupment, abatement, reduction or
defense;
(B) Except with respect to the Eckerd Credit Lease Loan and
the Best Buy Credit Lease Loan, the obligations of the
Credit Tenant under the Credit Lease, including, but
not limited to, the obligation of the Credit Tenant to
pay fixed and additional rent, are not affected by
reason of any damage to or destruction of any portion
of the leased property, any taking of the leased
property or any part thereof by condemnation or
otherwise, or any prohibition, limitation,
interruption, cessation, restriction, prevention or
interference of the Credit Tenant's use, occupancy or
enjoyment of the leased property, provided, however,
that the Credit Lease may permit a lease termination in
any such event if notice by the Credit Tenant of such
termination is accompanied by the exercise of an option
to purchase the Mortgaged Property for at least the
principal balance of the Mortgage Loans plus accrued
interest;
(C) In the event that the related Credit Lease may be
terminated upon the occurrence of a casualty or
condemnation, such Credit Lease Loan has the benefit of
a noncancelable Lease Enhancement Policy for which the
premium has been paid in full;
(D) The Borrower does not have any monetary obligations
under the Lease, and every monetary obligation
associated with managing, owning, developing and
operating the leased property (including, but not
limited to, the costs associated with utilities, taxes,
insurance, ground rents, payments under any easement
agreements affecting the Mortgaged Property,
maintenance and repairs) is an obligation of the Credit
Tenant;
(E) The Borrower does not have any continuing nonmonetary
obligations under the Credit Lease, the performance of
which would involve a material expenditure of funds or
the non-performance of which would entitle the Credit
Tenant to terminate the related Credit Lease;
(F) The Borrower has not made any false representation or
warranty under the Credit Lease that would impose any
material monetary obligation upon the Borrower or any
Landlord or result in the termination of the Credit
Lease;
(G) Except with respect to the Best Buy Credit Lease Loan
and the Eckerd Credit Lease Loan, the Credit Tenant
cannot terminate the Credit Lease for any reason, prior
to the payment in full of or the payment of funds
sufficient to pay in full (i) the principal balance of
the Mortgage Loan, (ii) all accrued and unpaid interest
on the Mortgage Loan, and (iii) any other sums due and
payable under the Mortgage Loan, as of the related
termination date, except for a default by the related
Borrower under the Credit Lease;
(H) In the event the Credit Tenant assigns or sublets the
leased property, the Credit Tenant remains primarily
obligated under the Credit Lease;
(I) The Credit Tenant has agreed to indemnify the related
Borrower from any claims of any nature arising as a
result of any hazardous material affecting the leased
property caused by the Credit Tenant and arising after
commencement of the Credit Lease;
(J) to the Seller's knowledge, each Credit Lease contains
customary and enforceable provisions which render the
rights and remedies of the lessor thereunder adequate
for the enforcement and satisfaction of the lessor's
rights thereunder;
(K) to the Seller's knowledge, in reliance on a tenant
estoppel certificate and representation made by the
Credit Tenant under the Credit Lease or representations
made by the related Borrower under the Mortgage Loan
documents, as of the closing date of each Credit Lease
Loan
(1) each Credit Lease was in full force and
effect, and no default by the Borrower or the
Tenant has occurred under the Credit Lease,
nor is there any existing condition which,
but for the passage of time or the giving of
notice or both, would result in a default
under the terms of the Credit Lease;
(2) none of the terms of the Credit Lease have
been impaired, waived, altered or modified in
any respect (except as described in the
related tenant estoppel) and the Credit Lease
Loan provides that the related Credit Lease
cannot be modified without the consent of the
Seller;
(3) no Credit Tenant has been released in whole
or in part, from its obligations under the
Credit Lease;
(4) there is no current right of rescission,
offset, abatement, diminution, defense or
counterclaim to any Credit Lease, nor will
the operation of any of the terms of the
Credit Leases, or the exercise of any rights
thereunder, render the Credit Lease
unenforceable (in whole or in part), or
subject to any right of rescission, offset,
abatement, diminution, defense or
counterclaim and no such right or claim has
been asserted with respect thereto; and
(5) each Credit Lease has a term ending on or
after the final maturity of the related
Credit Lease Loan and except with respect to
the Best Buy Credit Lease Loan which requires
a Balloon Payment at its maturity (and which
has in effect a Residual Value Policy to
cover any difference), each Credit Lease Loan
is fully-amortizing from rent payments
received during the term of the Credit Lease;
(L) to the Mortgage Loan Seller's knowledge, the Mortgaged
Property is not subject to any lease other than the
related Credit Lease, except with respect to the
Mortgaged Properties securing the Value City Credit
Lease Loans known as 3080/3232 Alum Creek Drive and One
Mall Road, which are each occupied in part by another
tenant whose rent was not used in underwriting of the
Credit Lease Loan, no Person has any possessory
interest in, or right to occupy, the Mortgaged
Property, except under and pursuant to such Credit
Lease and the Credit Tenant under the related Credit
Lease, or its wholly-owned subsidiary, is in occupancy
of the Mortgaged Property;
(M) each Credit Tenant has agreed to notify the Seller of
any event of default under the related Credit Lease and
to provide the Seller with additional time and an
opportunity to cure;
(N) each Credit Tenant under a Credit Lease is required to
make all rental payments directly to the Seller (or an
account controlled by Seller), its successors and
assigns;
(O) each Credit Lease Loan provides that the related Credit
Lease cannot be modified without the consent of the
Seller thereunder;
(P) the credit lease assignment creates a valid first
priority security interest in favor of the Seller, its
successors and assigns, in rights under the Credit
Lease, including the right to monthly lease payments
and, to the extent payable under each Credit Lease,
additional rent due under the related Credit Lease;
(Q) no person owns any interest in any payments due under
such Credit Lease other than the Borrower;
(R) the Credit Lease is subordinate in right to the related
Mortgage;
(S) in the event the Trustee acquires title to a Credit
Lease Property by foreclosure or otherwise, the
Borrower's interest under the related Credit Lease is
freely assignable by the Trustee and its successors and
assigns to any person without the consent of the Credit
Tenant, and in the event the Borrower's interest is so
assigned, the Credit Tenant will be obligated to
recognize the assignee as lessor under such Credit
Lease;
(T) the Credit Lease Loan is not secured by a property
under construction or substantial rehabilitation;
(U) the Interest Rate on the Credit Lease Loan is fixed
rate;
(V) in the event any Credit Lease is accompanied by a
guaranty from the rated parent or affiliate of the
Credit Tenant, (i) such guaranty is legal, valid and
binding against the guarantor; (ii) such guarantor has
also executed or acknowledged in writing, with respect
to the Mortgage, a subordination, non-disturbance
agreement and assignment to the Trustee; (iii) the
guaranty is unconditional, irrevocable and absolute,
without any right of offset, counterclaim or defense;
(iv) the guaranty provides that it is a guaranty of
both the performance and payment of the financial
obligations of the Credit Tenant, and not only of
collection; and (v) the guaranty is binding on the
guarantor, its successors and assigns and may not be
amended or released without the Trustee's consent;
(W) the Mortgaged Property has a permanent certificate of
occupancy and the Credit Tenant has commenced lease
payments; and
(X) The Credit Tenant has agreed to indemnify the Borrower
from any claims of any nature relating to the Credit
Lease Loan and the Mortgaged Property.
(xlii) With respect to each Mortgaged Property improved by a hotel
(except with respect to the Hotel Property known as the
Westin Casuarina Resort Property) or a healthcare facility,
the Seller has filed and/or recorded (or sent for filing
and/or recording on the closing date of the related Mortgage
Loan) Uniform Commercial Code financing statements on all
furniture, fixtures, equipment and all other personal
property used in the operation of the hotel or healthcare
facility;
(xliii) Except with respect to the Borrower under the Westin
Casuarina Resort Loan, each of the related Borrowers is
organized under the laws of a state or commonwealth of the
United States;
(xliv) The Mortgage File that is being conveyed to the Trustee is
complete;
(xlv) Each Mortgaged Property (i) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement
permitting ingress and egress, (ii) is served by public
utilities, water and sewer (or septic facilities), (iii) is
a separate tax parcel (or has reserved funds sufficient to
cover taxes for the entire tax parcel), except with respect
to the Circuit City-Columbus Morse Road Credit Lease Loan,
the CarMax-Irving Texas Credit Lease Loan and the Mortgaged
Properties for the Cinemark Credit Lease Loans located in
Pasadena, Beaumont, and Pflugeville (pursuant to which the
related Credit Tenants have agreed to be obligated to cause
the release of any liens arising against the related
Mortgaged Property in respect of such tax parcel), and
except with respect to the Ocean Edge Loan (in which a
portion of the Mortgaged Property is an easement contained
within another tax parcel (the "Other Tax Parcel"), but
which easement will transfer with the Mortgaged Property in
the event of non-payment of taxes for the Other Tax Parcel)
and (iv) has parking as required under applicable law;
(xlvi) The Seller has not advanced additional funds for principal
and interest or taxes and insurance (other than holdbacks at
the closing for the related Mortgage Loan from the proceeds
of such loan);
(xlvii) With respect to each Mortgage Loan that is an ARD Loan:
(A) The maximum rate increase after the Anticipated
Repayment Date is not greater than 200 basis points
above the original interest rate;
(B) Such Mortgage Loan begins amortizing no later than the
11th day of the month following the Cut-off Date; such
Mortgage Loan does not have an interest only period
after the Cut-off Date;
(C) The Anticipated Repayment Date is not less than seven
years from the closing date for such Mortgage Loan; and
(D) Such Mortgage Loan provides that from the Anticipated
Repayment Date through the maturity date for such
Mortgage Loan, all excess cash flow (net of budgeted
and lender approved discretionary capital expenditures)
will be applied to repay principal due under the
Mortgage Loan;
(xlviii) No advance of funds has been made, directly or indirectly,
by the Seller to the Borrower and no funds have been
received from any person other than the Borrower for or on
account of payments due on the Note or Mortgage;
(xlix) To the best of the Seller's knowledge, there is no pending
action, suit or proceeding, arbitration or governmental
investigation against the borrower or the Mortgaged Property
an adverse outcome of which would materially affect such
Borrower's performance under the loan documents or the
Certificateholders;
(l) The Note and Mortgage do not require the mortgagee to
release any portion of the Mortgaged Property from the lien
of the Mortgage except upon payment in full of the Mortgage
Loan, or, if applicable, in the event of (A) a defeasance
pursuant to the conditions specified in the related loan
documents, (B) the release of an immaterial portion of the
related Mortgage Property, (C) the payment of an Allocated
Loan Amount in the event of a casualty or condemnation, or
(D) after the Anticipated Repayment Date, a partial
prepayment of an Allocated Loan Amount with respect to a
portion of the Mortgaged Property; and
(li) With respect to each Mortgage Loan the related loan
documents permit the lender, following a default under such
Mortgage Loan, to apply funds received in respect of such
Mortgage Loan to amounts owing thereunder in the order which
the lender deems appropriate.
(c) The Seller has not dealt with any broker, investment banker, agent or
other person (other than the Company, the Underwriters and the Placement Agents)
who may be entitled to any commission or compensation in connection with the
sale to the Company of the Mortgages Loans.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling and
Servicing Agreement, the Seller and the Company shall be given notice of (A) any
breach of any representation or warranty contained in Section 2(b) (i), (ii),
(iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv), (xvi), (xvii),
(xviii), (xix), (xx), (xxiv), (xxv), (xxviii), (xxix), (xxx) or (xxx) and (B)
any breach of any representation or warranty contained in Section 2(b) (x),
(xiii), (xiv), (xxi), (xxii), (xxiii), (xxvi), (xxvii), (xxxii), (xxxiii),
(xxxiv), (xxxvi), (xxxvii), (xxxviii), (xxxix), (xl), (xli), (xlii), (xliii),
(xliv), (xlv), (xlvi), (xlvii), (xlviii), (xlix), (l) and (li) 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)(xxix) or (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)(xxix) or (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 setting forth the reason
such breach is not capable of being cured within the initial 90 day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such breach will be cured within the
additional 90 day period; and provided, further, that in the event that the
Seller fails to complete the cure of such breach within such additional 90 day
period, the Repurchase Price shall also include interest at the Advance Rate on
any Advance made by the Servicer in respect of the related Mortgage Loan. Upon
any such repurchase of a Mortgage Loan by Seller, the Company shall execute and
deliver such instruments of transfer or assignment presented to it by Seller, in
each case without recourse, as shall be necessary to vest in Seller the legal
and beneficial ownership of such Mortgage Loan or (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto) and the rights with respect thereto under the Bloomfield Mortgage Loan
Purchase Agreement (including, without limitation, the rights and remedies with
respect to representations and warranties made by Bloomfield 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 8 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. Costs. The Company shall pay all expenses incidental to the performance
of its obligations under the Underwriting Agreement and the Placement Agreement
dated March 30, 1998 (the "Placement Agreement") between the Company and NSI, as
Placement Agent, including without limitation (i) any recording fees or fees for
title policy endorsements and continuations, (ii) the expenses of preparing,
printing and reproducing the Prospectus Supplement, a Private Placement
Memorandum dated relating to the Private Certificates, the Underwriting
Agreement, the Placement Agreement, the Pooling and Servicing Agreement, the
Offered Certificates, the Private Certificates and the Retained Certificates and
(iii) the cost of delivering the Offered Certificates and the Private
Certificates to the office of the Underwriters or the purchaser of the such
certificates, as applicable, insured to the satisfaction of the Underwriters or
such purchaser, as applicable.
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 2 World Financial Center Building B, New
York, New York 10281-1198, Attention: 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: Manager - Mortgage Finance Department.
8. Trustee Beneficiary. The representations, warranties and agreements made
by the Seller in this Agreement are made for the benefit of, and may be enforced
by or on behalf of, the Trustee and the Holders of Certificates to the same
extent that the Company has rights against the Seller under this Agreement in
respect of representations, warranties and agreements made by the Seller herein
and such representations and warranties shall survive delivery of the respective
Mortgage Files to the Trustee until the termination of the Pooling and Servicing
Agreement.
9. Miscellaneous. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought. This Agreement may not be changed in
any manner which would have a material adverse effect on Holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Section 10.07 of
the Pooling and Servicing Agreement. This Agreement may be executed in any
number of counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and no other person
will have any right or obligation hereunder, other than as provided in Section 8
hereof.
<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.
NOMURA ASSET SECURITIES CORPORATION
By: _______________________________
Name:
Title:
NOMURA ASSET CAPITAL CORPORATION
By: _______________________________
Name:
Title:
<PAGE>
EXHIBIT A
Exceptions to (xxxiii)(A)
List of Borrowers that are not a Special Purpose Entity
Loan Cut-off Date Principal Balance
- ---- ------------------------------
Dublin Village Plaza $2,271,065
Middlesex Shopping Center $10,482,696
Villa Del Mar Apartments $3,693,187
Del Rey Shores $5,939,289
Burpee Building $4,444,864
Springhouse I $9,484,069
Barkwood Apartments $1,725,000
Parkview House Apartments $ 998,878
Portland Warehouse $1,195,694
55 East Houston Street $1,900,000
<PAGE>
EXHIBIT B
Exceptions to (xxxviii)
List of Affiliated Borrowers
Cut-Off Date
Name of Loan Borrower Affiliation Principal Balances
Sunshadow/Summerbreeze 1 $ 20,233,885
Sunbreeze Apartments 1 $ 5,931,446
Deer Park Gardens 2 $ 3,093,012
Conklin Street 2 $ 1,346,951
Sedgefield MHP 3 $ 4,485,680
Pavilion Estates MHP 3 $ 4,983,930
Huron Estates MHP 3 $ 12,809,107
Springhouse I 3 $ 9,484,069
Coach House 3 $ 17,693,848
Livonia Apartments 3 $ 2,367,215
Bosc - The Terraces 4 $ 10,706,425
Bosc Uptown District 4 $ 13,969,561
Schostak - Sterling 5 $ 6,895,502
Schostak - Shelby Northpoint 5 $ 22,463,357
Schostak - Laurel Office 5 $ 39,633,636
Abington II (Oxford) 7 $ 4,757,009
Woods Edge (Oxford) 7 $ 5,347,200
Pebble Point (Oxford) 7 $ 5,870,107
Abington I (Oxford) 7 $ 2,208,581
Stanford Park Hotel 8 $ 16,877,327
Monterey Plaza Hotel 8 $ 28,135,021
CAA - Maverick Records Bldg 9 $ 6,669,521
CAA - 1801 Century Park West 9 $ 11,300,000
CAA - Headquarters Beverly Hills 9 $ 23,480,370
Burnham Pacific - Powell Portfolio 10 $ 16,102,157
Burnham Pacific - Golden State 10 $134,838,933
CarMax - Davie 11 $ 13,036,279
CarMax - Laurel 11 $ 20,115,906
CarMax - Irving, TX 11 $ 13,143,635
Circuit City - Wallkill 11 $ 4,052,476
Circuit City - Columbus 11 $ 5,273,101
Circuit City - Columbus Morse Road 11 $ 5,468,402
Circuit City - Covington 11 $ 3,173,626
Circuit City - Oyster Bay 11 $ 4,491,902
Circuit City - Spokane 11 $ 4,296,602
Value City - Parma 12 $ 4,751,252
Value City - Columbus South 12 $ 2,303,108
Value City - Elyria 12 $ 4,600,911
Value City - Warrensville 12 $ 4,322,577
Value City - Melrose Park 12 $ 5,085,869
Value City Corporate Office - Westerville 12 $ 17,278,947
Value City - Cincinnati 12 $ 5,031,572
Value City - 3987 E. Main 12 $ 2,759,992
BRG - Andover, LP. 13 $ 6.900,000
Eastland 13 $ 13,000,000
BGK/West Allis 14 $ 10,074,436
BGK/Citadel 14 $ 4,154,260
BGK/3 Property Pool Bryan/Dairy/Sheehan 14 $ 6,940,068
Bank of Oklahoma 14 $ 8,189,078
BGK/Colony Woods 14 $ 8,336,908
BGK/Research Park 14 $ 3,500,000
BGK/Orangewood Place II 14 $ 6,577,928
Forest City - Atlantic Center (2 Notes) 15 $ 63,149.069
Forest City - After Six 15 $ 10,820,849
Forest City - Gunhill Home Depot 15 $ 11,647,930
Forest City - Gunhill Sneaker Stadium 15 $ 3,598,440
Forest City - Bruckner (2 Notes) 15 $ 14,134,206
JRK - Tampa/Orlando -(Shoals & Eagles Pt.) 16 $ 13,257,759
JRK - The Landing 16 $ 2,791,538
JRK - Langtry Village 16 $ 4,984,585
The Arbors of Bastrop 17 $ 2,721,724
Barkwood Apartments 17 $ 1,725,000
43-19/23 165th Street 18 $ 926,384
Manhattan Portfolio 18 $ 3,052,830
CarMax - Boynton Beach 19 $ 9,520,878
CarMax - Houston 19 $ 12,840,979
Sleep Inn - Beaver 20 $ 2,537,036
Comfort Inn - Beckley 20 $ 3,183,732
Vista Gardens Apartments 21 $ 5,939,243
Strathmore House Apartments 21 $ 5,190,369
Greystone Apartments 22 $ 5,589,810
Winsome West Apartments 22 $ 7,735,898
Andrews Place Apts. 23 $ 1,150,000
Hulen Hills Apts. 23 $ 1,560,000
Comfort Inn - Bethlehem 24 $ 3,500,000
Comfort Inn - West Hazelton 24 $ 4,025,000
Comfort Inn - Mansfield 24 $ 2,000,000
Milpitas MHP 25 $ 5,340,297
Creekside Shopping Center 25 $ 3,591,462
216 West 16th Street 26 $ 1,100,000
87 East 3rd Street 26 $ 900,000
55 East Houston Street 26 $ 1,900,000
Village Square Apartments 27 $ 1,545,000
Meadows of Bloomington 27 $ 2,400,000
Bramor MHP 28 $ 997,995
Afton Place MHP 28 $ 1,118,086
Bayberry Place Apartments 29 $ 2,196,142
Willows & Seville Oaks Apartments 29 $ 7,491,121
Belland Woods 30 $ 1,063,135
Parkside MF 30 $ 1,497,374
Microtel Inn - Cornelius 31 $ 1,354,603
Comfort Inn - Galax/Hillsville 31 $ 2,129,506
Bellaire Square Apts. 32 $ 2,045,754
Clearlake Crossing Apt. 32 $ 3,492,375
Burpee Building 33 $ 4,444,864
Stoltz - Lear 33 $ 4,848,913
Newport Apartments 34 $ 3,215,331
Scottwood Apartments 34 $ 847,452
Registry Apartments 34 $ 2,871,365
Jefferson Apartments 34 $ 3,838,457
Crossings at Hobart 35 $ 42,325,768
TJ Maxx Ctr. 35 $ 9,137,906
Shottenstein East 35 $ 5,756,881
Value City - 3080/3232 Alumn Creek Drive 35 $ 18,243,666
Value City - 1130 N. Coliseum Blvd. 35 $ 1,855,752
Value City - 1 Mall Rd. 35 $ 2,856,838
Value City - 2516 Sardis Rd. North 35 $ 5,765,049
Best Buy Pool 36 $ 14,355,277
Pierson Portfolio 36 $ 10,015,101
Hunters Ridge 2 37 $ 2,520,615
Hunters Ridge 3 37 $ 3,818,367
<PAGE>
FINANCING TRUST
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "Agreement") dated as
of March 30, 1998, is between Nomura Asset Securities Corporation, a Delaware
corporation (the "Company"), and Nomura Financing Trust ST I, a Delaware
business trust (the "Seller"). The Seller agrees to sell and the Company agrees
to purchase the mortgage loans (the "Mortgage Loans"). The Mortgage Loans are
described and set forth in the Mortgage Loan Schedule attached as Exhibit B-2 to
the Pooling and Servicing Agreement dated as of March 30, 1998 (the "Pooling and
Servicing Agreement"), among the Company, AMRESCO Services, L.P., as servicer
(the "Servicer"), CRIIMI MAE Services Limited Partnership, as special servicer,
LaSalle National Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent, relating to the issuance of the Nomura Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-D6 (the
"Certificates"). The Certificates will consist of twenty-one classes: the "Class
A-1A Certificates," the "Class A-1B Certificates," the "Class A-1C
Certificates," the "Class A-CS1 Certificates," the "Class PS-1 Certificates,"
the "Class A-2 Certificates," the "Class A-3 Certificates," the "Class A-4
Certificates" and the "Class A-5 Certificates" (collectively, the "Offered
Certificates"), the "Class B-1 Certificates," the "Class B-2 Certificates," the
"Class B-3 Certificates," the "Class B-4 Certificates," the "Class B-5
Certificates," the "Class B-6 Certificates," the "Class B-7 Certificates" and
the "Class R Certificates" (collectively, the "Private Certificates"), the
"Class B-7H Certificates," the "Class V-1 Certificates" and the "Class V-2
Certificates" (the "Retained Certificates," and together with the Offered
Certificates, the Private Certificates and the Class LR Certificates, the
"Certificates"). Capitalized terms used without definition herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement or,
if not defined therein, in the Underwriting Agreement, dated March 27, 1998 (the
"Underwriting Agreement"), by and among the Company, Nomura Securities
International, Inc. ("NSI"), Morgan Stanley & Co. Incorporated ("Morgan
Stanley") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch" and together with NSI and Morgan Stanley, the "Underwriters").
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 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.
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 after the Cut-off Date, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance policies. In
addition, the Seller hereby transfers, assigns, sets over and otherwise conveys
to the Company all the right, title and interest of the Seller in and to the
mortgage loan purchase agreement dated February 4, 1998, between Nomura Asset
Capital Corporation ("NACC") as seller and the Nomura Mirror Trust ST I-3/11/98
as purchaser and the mortgage loan purchase agreement dated February 4, 1998,
between Nomura Asset Capital Corporation ("NACC") as seller and Nomura Depositor
Trust ST I as purchaser, insofar as such rights relate to the Mortgage Loans,
including, but not limited to, the obligation of NACC to repurchase Mortgage
Loans with respect to which there exists a breach of one or more of NACC's
representations and warranties.
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 business trust duly organized, validly
existing and in good standing under the laws of the State of
Delaware with full power and authority to carry on its
business as presently conducted by it;
(ii) The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated
hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(iii) Assuming the due authorization, execution and delivery of
this Agreement by the Company, this Agreement and all of the
obligations of the Seller hereunder are the legal, valid and
binding obligations of the Seller, enforceable in accordance
with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating
to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Seller does
not conflict with any provision of any law or regulation to
which the Seller is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to
which the Seller is a party or by which it is bound, or any
order or decree applicable to the Seller, or result in the
creation or imposition of any lien on any of the Seller's
assets or property, which would materially and adversely
affect the ability of the Seller to carry out the
transactions contemplated by this Agreement. The Seller has
obtained any consent, approval, authorization or order of
any court or governmental agency or body required for the
execution, delivery and performance by the Seller of this
Agreement; and
(v) There is no action, suit or proceeding pending against the
Seller in any court or by or before any other governmental
agency or instrumentality which would materially and
adversely affect the ability of the Seller to carry out its
obligations under this Agreement or have a material adverse
effect on the financial condition of the Seller or the
ability of the Seller to perform its obligations under this
Agreement.
(b) The Seller hereby represents and warrants with respect to each Mortgage
Loan that as of the date specified below or, if no such date is specified, as of
the Closing Date:
(i) Immediately prior to the sale, transfer and assignment to
the Company, each related Note and Mortgage was not subject
to an assignment (other than to the Seller) or pledge, and
the Seller had good and marketable title to, and was the
sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the
Company constitutes a legal, valid and binding assignment of
such Mortgage;
(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 the
matters described in clause (xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and Rents
(if any) and other agreement executed in connection with
such Mortgage Loan are legal, valid and binding obligations
of the related Borrower, enforceable in accordance with
their terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights
generally, or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and to the best of the Seller's knowledge,
there is no valid defense, counterclaim, right of rescission
or right of set-off or abatement available to the related
Borrower with respect to such Note, Mortgage and other
agreements;
(v) Each related Assignment of Leases and Rents creates a valid,
collateral or first priority assignment of, or a valid first
priority security interest in, certain rights under the
related lease, subject only to a license granted to the
related Borrower to exercise certain rights and to perform
certain obligations of the lessor under such lease,
including the right to operate the related Mortgaged
Property; no person other than the related Borrower owns any
interest in any payments due under such lease that is
superior to or of equal priority with the mortgagee's
interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Company and any related Reassignment of Assignment of Leases
and Rents, if any, or assignment of any other agreement
executed in connection with such Mortgage Loan, from the
Seller to the Company constitutes the legal, valid and
binding assignment from the Seller to the Company, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights
generally, or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(vii) Since origination, and except as set forth in the related
Mortgage File, 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
which materially interferes with the security intended to be
provided by such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property, and such Mortgaged
Property (subject to the matters described in clause (xi)
below), 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 Seller, its successors and
assigns, or the holder of the related Note as to a valid and
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), 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 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; such policy is
assignable to the Company without the consent of or any
notification to the insurer, and is in full force and effect
upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy
and the Seller has not done anything, by act or omission,
and the Seller has no knowledge of any matter, which would
impair or diminish the coverage of such policy; 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
and there is no requirement for future advances thereunder
and the Seller covenants that it will not make any future
advances under the Mortgage Loan to the related Borrower;
(xiii) Each related Mortgaged Property is free of any material
damage that would affect materially and adversely the value
of such Mortgaged Property as security for the Mortgage Loan
and there is no proceeding pending for the total or partial
condemnation of such Mortgaged Property;
(xiv) Each of the related Borrowers (and, if the related Mortgaged
Property is secured by a senior housing or healthcare
facility, each of the operators of such facility) is in
possession of all material licenses, permits and other
authorizations necessary and required by all applicable laws
for the conduct of its business and all such licenses,
permits and authorizations are valid and in full force and
effect, and if a related Mortgaged Property is improved by a
healthcare facility, the most recent inspection or survey by
governmental authorities having jurisdiction in connection
with such licenses, permits and authorizations did not cite
such Mortgaged Property for material violations (which shall
include only "Level A" violations or the equivalent, in the
case of skilled nursing facilities, that have not been
cured); and if a related Mortgaged Property is improved by a
hotel, the most recent inspection or review by the
franchisor, if any, did not cite such Mortgaged Property for
material violations of the related franchise agreement which
have not been cured;
(xv) The Seller or, to the best of Seller's knowledge, Bloomfield
has inspected or caused to be inspected each related
Mortgaged Property within the past 12 months preceding the
Cut-off Date or within 1 month of origination of the
Mortgage Loan;
(xvi) Such Mortgage Loan does not have a shared appreciation
feature, other contingent interest feature or negative
amortization;
(xvii) Such Mortgage Loan is a whole loan and no other party holds
an interest in the Mortgage Loan;
(xviii) (A) The Mortgage Rate (exclusive of any default interest,
late charge or yield maintenance charge) of such Mortgage
Loan complied as of the date of origination with, or is
exempt from, applicable state or federal laws, regulations
and other requirements pertaining to usury; any and all
other requirements of any federal, state or local laws,
including, without limitation, truth-in-lending, real estate
settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such Mortgage
Loan and (B) the Seller has received an opinion that such
Mortgage Loan is not usurious;
(xix) (A) With respect to each Mortgage Loan originated by the
Seller, no fraudulent acts were committed by the Seller
during the origination process of such Mortgage Loan and the
origination, servicing and collection of each Mortgage Loan
is in all respects legal, proper and prudent in accordance
with customary industry standards and (B) with respect to
each Mortgage Loan originated by Bloomfield, to the best of
the Seller's knowledge, no fraudulent acts were committed by
Bloomfield during the origination process of such Mortgage
Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent
in accordance with customary industry standards;
(xx) All taxes and governmental assessments that prior to the
Closing Date became due and owing in respect of, each
related Mortgaged Property have been paid or an escrow of
funds in an amount sufficient to cover such payments has
been established;
(xxi) All escrow deposits and payments required pursuant to the
Mortgage Loans are in the possession, or under the control,
of the Seller or its agent and there are no deficiencies in
connection therewith and all such escrows and deposits have
been conveyed by the Seller to the Company and identified as
such with appropriate detail;
(xxii) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and do
business in the jurisdiction in which each related Mortgaged
Property is located at all times when it held the Mortgage
Loan;
(xxiii) (A) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer
meeting the requirements under the related Mortgage Loan 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, except
with respect to certain portions of certain Mortgaged
Properties in which a Credit Tenant self-insures for its
portion of such Mortgaged Property;
(B) Each related Mortgaged Property is covered by business
interruption insurance (for at least 12 months of rent
interruptions) and each Mortgaged Property is covered
by comprehensive general liability insurance in amounts
generally required by institutional lenders for similar
properties;
(C) All premiums on any insurance policies required to be
paid as of the date hereof have been paid;
(D) The insurance policies require prior notice to the
insured of termination or cancellation, and no such
notice has been received; and
(E) 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 which,
with the passage of time or with notice and the expiration
of any grace or cure period, would and does constitute a
default, breach, violation or event of acceleration;
(xxv) Such Mortgage Loan has not been 30 days or more delinquent
since origination and as of the Cut-off Date was not
delinquent;
(xxvi) Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable,
non-judicial foreclosure, and there is no exemption
available to the Borrower which would interfere with such
right to foreclose. To the best of the Seller's knowledge,
no Borrower is a debtor in a state or federal bankruptcy or
insolvency preceding;
(xxvii) In each related Mortgage or Loan Agreement, the related
Borrower represents and warrants that, except as set forth
in certain environmental reports or other documents
previously provided to the Rating Agencies and to the best
of its knowledge, it has not used, caused or permitted to
exist and will not use, cause or permit to exist on the
related Mortgaged Property any Hazardous Materials in any
manner which violates federal, state or local laws,
ordinances, regulations, orders, directives or policies
governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of
Hazardous Materials; the related Borrower agrees to
indemnify, defend and hold the mortgagee and its successors
and assigns harmless from and against 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. A Phase I
environmental report was conducted by a reputable
environmental engineer in connection with such Mortgage
Loan, which report does not indicate any material
non-compliance or material existence of Hazardous Materials,
except as disclosed in the Prospectus Supplement and the
Prospectus, each dated March 27, 1998 (under "Risk
Factors--The Mortgage Loans--Environmental Law
Considerations" in the Prospectus Supplement). To the best
of the Seller's knowledge, each related Mortgaged Property,
except as disclosed in the Prospectus, is in material
compliance with all applicable federal, state and local laws
pertaining to environmental hazards, and to the best of
Seller's knowledge, no notice of violation of such laws has
been issued by any governmental agency or authority; the
Seller has not taken any action which would cause the
related Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental
hazards;
(xxviii) Each related Mortgage or Loan Agreement contains provisions
for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or Loan Agreement or obtaining
the prior written consent of the Mortgagee or the
satisfaction of certain conditions, the related Mortgaged
Property, or any interest therein, is directly or indirectly
transferred or sold, or encumbered in connection with
subordinate financing and each related Mortgage prohibits
the pledge or encumbrance of the Mortgaged Property without
the consent of the holder of the Mortgage Loan;
(xxix) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and
(2) the fair market value of such real property was at least
equal to 80% of the principal amount of the Mortgage Loan
(a) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage
Loan was not in default or default with respect thereto was
not reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first
be reduced by (A) the amount of any lien on the real
property interest that is senior to the Mortgage Loan
(unless such senior lien also secures a Mortgage Loan, in
which event the computation described in (a) and (b) shall
be made on an aggregated basis) and (B) a proportionate
amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event
the computation described in (a) and (b) shall be made on an
aggregate basis). All improvements included for MAI
appraisals are within the boundaries of the related
Mortgaged Property;
(xxx) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage,
or any substantially similar successor provision);
(xxxi) The mortgage loan schedule which is an exhibit to the
Pooling and Servicing Agreement is complete and accurate in
all respects;
(xxxii) Each Mortgaged Property is in compliance, in all material
respects, with all applicable laws, zoning ordinances,
rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged
Property. All inspections, licenses and certificates
required, including certificates of occupancy (if
applicable), whether by law, ordinance, regulation or
insurance standards to be made or issued with regard to the
Mortgaged Property, have been obtained and are in full force
and effect;
(xxxiii) (A) Each Borrower is an entity whose organizational
documents provide that it is, and at least so long as the
Mortgage Loan is outstanding will continue to be, a
single-purpose entity. (For this purpose, "single-purpose
entity" shall mean a person, other than an individual, which
is formed or organized solely for the purpose of owning and
operating a single property, does not engage in any business
unrelated to such property and its financing, does not have
any assets other than those related to its interest in the
property or its financing, or any indebtedness other than as
permitted by the related Mortgage or the other Loan
Documents, has its own books and records and accounts
separate and apart from any other person, and holds itself
out as being a legal entity, separate and apart from any
other person);
(B) A non-consolidation opinion was obtained for each
Borrower or group of affiliated Borrowers in which the
Cut-off Date Principal Balance of the Mortgage Loan or
Loans, as applicable, have an aggregate Cut-off Date
Principal Balance in excess of $20,000,000;
(C) The organizational documents for each Borrower or group
of affiliated Borrowers under a Mortgage Loan or Loans
having a Cut-off Date Principal Balance in excess of
$25,000,000 require that the Board of Directors of the
Borrower or Borrowers, as applicable, its corporate
general partner, or managing member, as applicable,
include an independent director;
(xxxiv) With respect to each Mortgaged Property where a portion of
the estate of the related borrower is a leasehold estate (if
any), such portion is not a material portion or the fee
interest of the related ground lessor is subject to and
subordinate to the related Mortgage;
(xxxv) With respect to the Mortgaged Properties that have
earthquake, windstorm or flood insurance, as of the Cut-off
Date, such insurance is required to be maintained until the
principal balance of the related Mortgage Loan is paid in
full;
(xxxvi) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are
cross-collateralized by such Mortgage Loans are included in
the Mortgage Pool;
(xxxvii) Neither the Seller nor any affiliate thereof has any
obligation or right to make any capital contribution to any
Borrower under a Mortgage Loan, other than contributions
made on or prior to the Closing Date;
(xxxviii) No Borrower under a Mortgage Loan is an affiliate of a
Borrower under any other Mortgage Loan;
(xxxix) After receipt of the Purchase Price, the Seller has no right
of set-off with respect to the transfer of the Mortgage
Loans to the Company;
(xl) With respect to each Mortgage Loan originated by Bloomfield:
(A) Such Mortgage Loan was underwritten in accordance with
standards established by the Seller, using application
forms and related credit documents approved by the
Seller;
(B) The Seller approved each application and related credit
documents before a commitment by Bloomfield was issued,
and no such commitment was issued until the Seller
agreed to fund such loan;
(C) The closing documents for such Mortgage Loan were
prepared on forms approved by the Seller, and reflect
the Seller as the successor and assign to Bloomfield;
and
(D) Such Mortgage Loan was actually funded by the Seller,
and was assigned to the Seller at the closing;
(xli) Reserved;
(xlii) With respect to each Mortgaged Property improved by a hotel
or a healthcare facility, the Seller has filed and/or
recorded (or sent for filing and/or recording on the closing
date of the related Mortgage Loan) Uniform Commercial Code
financing statements on all furniture, fixtures, equipment
and all other personal property used in the operation of the
hotel or healthcare facility;
(xliii) Each of the related Borrowers is organized under the laws of
a state or commonwealth of the United States;
(xliv) The Mortgage File that is being conveyed to the Trustee is
complete;
(xlv) Each Mortgaged Property (i) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement
permitting ingress and egress, (ii) is served by public
utilities, water and sewer (or septic facilities), (iii) is
a separate tax parcel (or has reserved funds sufficient to
cover taxes for the entire tax parcel), and (iv) has parking
as required under applicable law;
(xlvi) The Seller has not advanced additional funds for principal
and interest or taxes and insurance (other than holdbacks at
the closing for the related Mortgage Loan from the proceeds
of such loan); and
(xlvii) With respect to each Mortgage Loan that is an ARD Loan:
(A) The maximum rate increase after the Anticipated
Repayment Date is not greater than 200 basis points
above the original interest rate;
(B) Such Mortgage Loan begins amortizing no later than the
11th day of the month following the Cut-off Date; such
Mortgage Loan does not have an interest only period
after the Cut-off Date;
(C) The Anticipated Repayment Date is not less than seven
years from the closing date for such Mortgage Loan; and
(D) Such Mortgage Loan provides that from the Anticipated
Repayment Date through the maturity date for such
Mortgage Loan, all excess cash flow (net of budgeted
and lender approved discretionary capital expenditures)
will be applied to repay principal due under the
Mortgage Loan;
(xlviii) No advance of funds has been made, directly or indirectly,
by the Seller to the Borrower and no funds have been
received from any person other than the Borrower for or on
account of payments due on the Note or Mortgage;
(xlix) To the best of the Seller's knowledge, there is no pending
action, suit or proceeding, arbitration or governmental
investigation against the borrower or the Mortgaged Property
an adverse outcome of which would materially affect such
Borrower's performance under the loan documents or the
Certificateholders;
(l) The Note and Mortgage do not require the mortgagee to
release any portion of the Mortgaged Property from the lien
of the Mortgage except upon payment in full of the Mortgage
Loan, or, if applicable, in the event of (A) a defeasance
pursuant to the conditions specified in the related loan
documents, (B) the release of an immaterial portion of the
related Mortgage Property, (C) the payment of an Allocated
Loan Amount in the event of a casualty or condemnation, or
(D) after the Anticipated Repayment Date, a partial
prepayment of an Allocated Loan Amount with respect to a
portion of the Mortgaged Property; and
(li) With respect to each Mortgage Loan the related loan
documents permit the lender, following a default under such
Mortgage Loan, to apply funds received in respect of such
Mortgage Loan to amounts owing thereunder in the order which
the lender deems appropriate.
(c) The Seller has not dealt with any broker, investment banker, agent or
other person (other than the Company, the Underwriters and the Placement Agents)
who may be entitled to any commission or compensation in connection with the
sale to the Company of the Mortgages Loans.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling and
Servicing Agreement, the Seller and the Company shall be given notice of (A) any
breach of any representation or warranty contained in Section 2(b) (i), (ii),
(iii), (iv), (v), (vi), (vii) , (viii), (ix), (xi), (xii), (xv), (xvi), (xvii),
(xviii), (xix), (xx), (xxiv), (xxv), (xxviii), (xxix), (xxx) or (xxxi) or (xx)
and (B) any breach of any representation or warranty contained in Section 2(b),
(x), (xiii), (xiv), (xvi), (xxii), (xiii), (xxvi), (xxvii), (xxxii), (xxxiii),
(xxxiv), (xxxvi), (xxxvii), (xxxvii), (xxxviii), (xxxix), (xl), (xli), (xlii),
(xliii), (xliv), (xlv), (xlvi), (xlvii), (xix), (l), (li) 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)(xxix) or (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)(xxix) or (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 setting forth the reason
such breach is not capable of being cured within the initial 90 day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such breach will be cured within the
additional 90 day period; and provided, further, that in the event that the
Seller fails to complete the cure of such breach within such additional 90 day
period, the Repurchase Price shall also include interest at the Advance Rate on
any Advance made by the Servicer in respect of the related Mortgage Loan. Upon
any such repurchase of a Mortgage Loan by Seller, the Company shall execute and
deliver such instruments of transfer or assignment presented to it by Seller, in
each case without recourse, as shall be necessary to vest in Seller the legal
and beneficial ownership of such Mortgage Loan (including any property acquired
in respect thereof or proceeds of any insurance policy with respect thereto) 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 7 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 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. 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: Manager - Mortgage Finance Department, or,
if sent to the Seller, will be mailed, delivered or telegraphed and confirmed to
it at c/o Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, DE 19890-0001 Attention: Corporate Trust Administration,
with a copy to Nomura Asset Capital Corporation, 2 World Financial Center -
Building B, New York, New York 10281-1198, Attention: Manager - Mortgage Finance
Department.
7. 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.
8. Miscellaneous. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought. This Agreement may not be changed in
any manner which would have a material adverse effect on Holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Section 10.07 of
the Pooling and Servicing Agreement. This Agreement may be executed in any
number of counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and no other person
will have any right or obligation hereunder, other than as provided in Section 7
hereof.
9. Limitation of Liability of Owner Trustee of Seller. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually or personally but
solely as trustee of the Seller under the Trust Agreement, in the exercise of
the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Seller is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Seller, (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Seller or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Seller under this Agreement or the Trust Related Agreements
(as defined in the Trust Agreement).
<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.
NOMURA ASSET SECURITIES CORPORATION
By: _______________________________
Name:
Title:
NOMURA FINANCING TRUST ST I
By: Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
By: _______________________________
Name:
Title:
<PAGE>
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6, Class [ ]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of March 30, 1998 (the "Pooling and Servicing
Agreement"), by and among Nomura Asset Securities Corporation, as depositor,
AMRESCO Services L.P., as servicer (the "Servicer"), CRIIMI MAE Services Limited
Partnership, as special servicer (the "Special Servicer"), LaSalle National
Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent"), on behalf of the holders of the Nomura Asset Securities
Corporation, Commercial Mortgage Pass-Through Certificates, 1998-D6, 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;]*
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
[(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;]*
(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, the
Servicer and the Special Servicer.
--------------------------------
Transferor
By:
-----------------------------
Name:
Title:
Dated: _________ __, 199_
<PAGE>
EXHIBIT J
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 Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6 Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated as of
March 30, 1998 (the "Pooling and Servicing Agreement"), by and among Nomura
Asset Securities Corporation, as depositor (the "Depositor"), AMRESCO Services,
L.P., as servicer (the "Servicer"), CRIIMI MAE Services Limited Partnership as
special servicer (the "Special Servicer"), LaSalle National Bank, as trustee
(the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. ) with the Depository in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest for an interest in the Regulation S Global Certificate
(CUSIP No. ) to be held with [Euroclear] [CEDEL]* (Common Code ) through the
Depositary.
* Select appropriate depository.
In connection with such request and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United
States,
[(2)at the time the buy order was originated, the transferee was outside
the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
[(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, the Special
Servicer and the Fiscal Agent.
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated: _____________, ____
<PAGE>
EXHIBIT K
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 Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated as of
March 30, 1998 (the "Pooling and Servicing Agreement"), by and among Nomura
Asset Securities Corporation, as depositor, AMRESCO Services L.P., as servicer
(the "Servicer"), CRIIMI MAE Services Limited Partnership as special servicer
(the "Special Servicer"), LaSalle National Bank, as trustee (the "Trustee") and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. ) with the Depository in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Certificates for an interest in the Regulation S
Global Certificate (Common Code No. ).
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and, (i) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United
States,
[(2)at the time the buy order was originated, the transferee was outside
the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]*
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
[(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, the
Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated: ____ __, ____
<PAGE>
EXHIBIT L
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 Nomura Asset Securities Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D6, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement dated as of
March 30, 1998 (the "Pooling and Servicing Agreement"), by and among Nomura
Asset Securities Corporation, as depositor (the "Depositor"), AMRESCO Services,
L.P., as servicer (the "Servicer"), CRIIMI MAE Services Limited Partnership as
special servicer (the "Special Servicer"), LaSalle National Bank, as trustee
(the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Regulation S
Global Certificate (CUSIP No. __________) with [Euroclear] [CEDEL]* (Common Code
__________) through the Depository in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Certificates for an interest in the Regulation 144A Global
Certificate (CUSIP No. __________).
* Select appropriate depository.
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and (ii) Rule 144A under the Securities Act to a transferee
that the Transferor reasonably believes is purchasing the Certificates for its
own account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or an jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Fiscal Agent, the
Servicer, the Special Servicer and Nomura Securities International, Inc., the
Placement Agent of the offering of the Certificates.
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated: ____ __, 19__
- -----------
<PAGE>
EXHIBIT M
Comparative Financial Status Report
Exhibit M-1
<TABLE>
<CAPTION>
Original Underwriting Information
---------------------------------
Last Ending
Property Scheduled Paid Annual Financial
Prospectus Inspection Principal Thru Debt Info as % Total $
Number City State Date Balance Date Service of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Prior Full Year Operating Information
-------------------------------------
As of Y-E-YYYY Normalized
Financial
Info % Total $
as of Occ Revenue NOI DSCR
Date
<TABLE>
<CAPTION>
Current Annual Operating Information "Actual" YTD Financial Information
------------------------------------ ----------------------------------
As of Y-E-YYYY Normalized Month Reported
Financial FS FS
Info as of % Total $ Start End % Total $
Date Occ Revenue NOI DSCR Date Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Net Change
Current & Basis
%
% Total
Occ Rev DSCR
Financial Information:
Current Full Year:
Current Full Yr. received with DSC less than 1:
Prior Full Year:
Prior Full Yr. received with DSC less than 1:
Received Required
Loans Balance Balance
# % $ % % $
<PAGE>
Delinquent Loan Status Report
Exhibit M-2
<TABLE>
<CAPTION>
Ending
Prospectus Borrower Property Sq Ft or Paid to Scheduled
ID Name Type City State Units Date Balance
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total O/S
P&I Total O/S
Advances to Expenses to
Date Date
<TABLE>
<CAPTION>
Other
Advances Current Current LTM
(Taxes & Total Monthly Interest Mat. NOI
Insurance) Exposure P&I Rate Date Date LTM NOI
<S> <C> <C> <C> <C> <C>
</TABLE>
LTM Cap Rate
DSCR Assigned
<PAGE>
Delinquent Loan Status Report
Exhibit M-2
<TABLE>
<CAPTION>
Value Using Valuation/ Appraisal, Loss Using
Prospectus Borrower Property NOI & Cap Appraisal BPO, or 92% Appraisal
ID Name Type City State Rate Date Internal Value or BPO
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Total Appraisal Expected
Estimated Reduction Transfer Resolution FCL Start FCL Sale Workout
Recovery % Realized Date Date Date Date Strategy Comments
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Historical Loan Modification Report
Exhibit M-3
<TABLE>
<CAPTION>
Balance
when Balance at
Modification Modification sent to the
Prospectus City State or Effective Special Effective Old Rate New Rate # of Months
ID Ext Flag Date Servicer Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Old P&I New P&I Old
Maturity
<PAGE>
Historical Loan Modification Report
Exhibit M-3
<TABLE>
<CAPTION>
Estimated
New Months for Mod Realized Loss Interest Loss to
Prospectus ID City Maturity Change to Trust Trust Comments
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Historical Loss Estimate Report
Exhibit M-4
<TABLE>
<CAPTION>
Latest
Appraisal
Prospectus Borrower Property % Rec or Effective
ID Name Type City State from Brokers Date of Sales
Sale Opinion Sale Price
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Net Amount Scheduled Total P&I Total Servicing
Received Balance Paid Expenses Fees
from (As of (Advances) (Outstanding) Expense
Sale Resolution)
<PAGE>
Historical Loss Estimate Report
Exhibit M-4
<TABLE>
<CAPTION>
Date Loss
Prospectus Property Actual Losses Passed Minor Adj to
ID Borrower Type City Net Proceeds Passed Through Trust
Name Through
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Date
Minor Adj Loss % of
Passed Total Loss Scheduled
Through with Balance
Adjustment
<PAGE>
Reo Status Report
Exhibit M-5
<TABLE>
<CAPTION>
Paid Ending
Prospectus Borrower Property Sq Ft or thru Scheduled
ID Name Type City State Units Date Balance
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total P&I Total
Advances to Expenses to
Date Date
<TABLE>
<CAPTION>
Other
Advances LTM
(Taxes & Current Maturity NOI LTM
Insurance) Total Exposure Monthly P&I Date Date LTM NOI DSCR
<S> <C> <C> <C> <C> <C>
</TABLE>
Valuation/
Cap Rate Appraisal
Assigned Date
<PAGE>
Reo Status Report
Exhibit M-5
<TABLE>
<CAPTION>
Total Special
Value Appraisal/ Loss Using Appraisal Servicing
Prospectus Borrower Property using BPO or 92% Estimated Reduction Transfer
ID Name Type City NOI & Cap Internal Appraisal Recovery % Realized Date
Rate Value or BPO
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
REO Pending
Acquisition Resolution
Date Date Comments
<PAGE>
Servicer Watch List
Exhibit M-6
<TABLE>
<CAPTION>
Ending
Prospectus Borrower Property Scheduled Paid thru
ID Name Type City State Balance Date
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
Maturity Comment/Reason
Date LTM DSCR on Watch List
<PAGE>
OPERATING STATEMENT ANALYSIS REPORT
Exhibit M-7
As of
<TABLE>
<CAPTION>
PROPERTY OVERVIEW:
<S> <C> <C> <C> <C> <C> <C>
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Underwriting 1995 1996 1997 1998 YTD
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # of months
Period Ended Underwriting 1995 1996 1997 1998 YTD 1997-Base 1997-1996
Statement Classification Basis Normalized Normalized Normalized Variance Variance
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
</TABLE>
<PAGE>
OPERATING STATEMENT ANALYSIS WORKSHEET
Exhibit M-8
AS OF MM/DD/YY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # of months
Period Ended Underwriting 1998 YTD
Statement Classification Basis Normalized
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
</TABLE>
<PAGE>
CSSA Set-Up Data Record Layout
Exhibit M-9
Field
Field Name Number Type Format
- ---------- ------ ---- ------
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX9701A
Loan Id 3 AN 00000000012345
Offering Document Loan Id 4 AN 123
Original Note Amount 5 Numeric 1000000.00
Original Term Of Loan 6 Numeric 240
Original Amortization Term 7 Numeric 360
Original Note Rate 8 Numeric 0.095
Original Payment Rate 9 Numeric 0.095
First Loan Payment Due Date 10 AN YYYYMMDD
Grace Days Allowed 11 Numeric 10
Interest Only (Y/N) 12 AN Y
Balloon (Y/N) 13 AN Y
Interest Rate Type 14 Numeric 1
Interest Accrual Method Code 15 Numeric 1
Interest in Arrears (Y/N) 16 AN Y
Payment Type Code 17 Numeric 1
Prepayment Lock-out End Date 18 AN YYYYMMDD
Yield Maintenance End Date 19 AN YYYYMMDD
Prepayment Premium End Date 20 AN YYYYMMDD
Prepayment Terms Description 21 AN Text
ARM Index Code 22 AN A
First Rate Adjustment Date 23 AN YYYYMMDD
First Payment Adjustment Date 24 AN YYYYMMDD
ARM Margin 25 Numeric 0.025
Lifetime Rate Cap 26 Numeric 0.15
Lifetime Rate Floor 27 Numeric 0.05
Periodic Rate Increase Limit 28 Numeric 0.02
Periodic Rate Decrease Limit 29 Numeric 0.02
Periodic Payment Adjustment Max-% 30 Numeric 0.03
Periodic Payment Adjustment Max-$ 31 Numeric 5000.00
Payment Frequency 32 Numeric 1
Rate Reset Frequency In Months 33 Numeric 1
Payment Reset Frequency In Months 34 Numeric 1
Rounding Code 35 Numeric 1
Rounding Increment 36 Numeric 0.00125
Index Look Back In Days 37 Numeric 45
Negative Amortization Allowed (Y/N) 38 AN Y
Max Negam Allowed (% Of Orig Balance) 39 Numeric 0.075
Maximum Negam Allowed ($) 40 Numeric 25000.00
Remaining Term At Securitization 41 Numeric 240
Remaining Amortized Term At Securitization 42 Numeric 360
Maturity Date At Securitization 43 AN YYYYMMDD
Scheduled Principal Balance At Securitization 44 Numeric 1000000.00
Note Rate At Securitization 45 Numeric 0.095
Servicer And Trustee Fee Rate 46 Numeric 0.00025
Fee Rate / Strip Rate 1 47 Numeric 0.00001
Fee Rate / Strip Rate 2 48 Numeric 0.00001
Fee Rate / Strip Rate 3 49 Numeric 0.00001
Fee Rate / Strip Rate 4 50 Numeric 0.00001
Fee Rate / Strip Rate 5 51 Numeric 0.00001
Net Rate At Securitization 52 Numeric 0.00001
Periodic P&I Payment At Securitization 53 Numeric 3000.00
# Of Properties 54 Numeric 13
Property Name 55 AN Text
Property Address 56 AN Text
Property City 57 AN Text
Property State 58 AN Text
Property Zip Code 59 AN Text
Property County 60 AN Text
Property Type Code 61 AN MF
Net Square Feet At Securitization 62 Numeric 25000
# Of Units/Beds/Rooms At Securitization 63 Numeric 75
Year Built 64 AN 1990
NOI At Securitization 65 Numeric 100000.00
DSCR At Securitization 66 Numeric 2.11
Appraisal Value At Securitization 67 Numeric 1000000.00
Appraisal Date At Securitization 68 AN YYYYMMDD
Physical Occupancy At Securitization 69 Numeric 0.88
Revenue At Securitization 70 Numeric 100000.00
Operating Expenses At Securitization 71 Numeric 100000.00
Securitization Financials As Of Date 72 AN YYYYMMDD
Recourse (Y/N) 73 AN Y
Ground Lease (Y/N) 74 AN Y
Cross-Collateralized Loan Grouping 75 Numeric 9(3)
Collection Of Escrows (Y/N) 76 AN Y
Collection Of Other Reserves (Y/N) 77 AN Y
Lien Position At Securitization 78 Numeric 1
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Indentification Number Assigned To Each Loan Group Within An Issue
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Offering Document Loan Id Unique Indentification Number Assigned To Each Collateral Item In The Prospectus
Original Note Amount The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan Original Number Of Months Until Maturity Of Loan
Original Amortization Term Original Number Of Months Loan Amortized Over
Original Note Rate The Note Rate At Inception Of The Note
Original Payment Rate Original Rate Payment Calculated On
First Loan Payment Due Date First Payment Date On The Mortgage Loan
Grace Days Allowed Number Of Days From Due Date Borrower Is Permitted To Remit Payment
Interest Only (Y/N) Y=Yes, N=No
Balloon (Y/N) Y=Yes, N=No
Interest Rate Type 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual, 5=Actual/366, 6=Simple,
7=78'S
Interest in Arrears (Y/N) Y=Yes, N=No
Payment Type Code See Payment Type Code Legend
Prepayment Lock-out End Date Date After Which Loan Can Be Prepaid
Yield Maintenance End Date Date After Which Loan Can Be Prepaid Without Yield Maintenance
Prepayment Premium End Date Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description Description Of Prepayment Terms (Not To Exceed 50 Characters)
ARM Index Code See Arm Index Code Legend
First Rate Adjustment Date Date Note Rate Originally Changed
First Payment Adjustment Date Date Payment Originally Changed
ARM Margin Rate Added To Index Used In The Determination Of The Gross Interest Rate
Lifetime Rate Cap Maximum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Lifetime Rate Floor Minimum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Periodic Rate Increase Limit Maximum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Rate Decrease Limit Minimum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Payment Adjustment Max-% Maximum Periodic Percentage Increase To The Borrowers P&I Payment Allowed Per
The Loan Agreement
Periodic Payment Adjustment Max-$ Maximum Periodic Dollar Increase To The Borrowers P&I Payment Allowed Per
The Loan Agreement
Payment Frequency 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Payment Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rounding Code Rounding Method For Sum Of Index Plus Margin (See Rounding Code Legend)
Rounding Increment Used In Conjunction With Rounding Code
Index Look Back In Days Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) Y=Yes, N=No
Max Negam Allowed (% Of Orig Balance) Maximum Lifetime Percentage Increase To The Original Balance Allowed
Per The Loan Agreement
Maximum Negam Allowed ($) Maximum Lifetime Dollar Increase To The Original Balance Allowed
Per The Loan Agreement
Remaining Term At Securitization Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amortized Term At Securitization Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Securitization The Scheduled Maturity Date Of The Mortgage Loan At Securitization
Scheduled Principal Balance At Securitization The Scheduled Principal Balance Of The Mortgage Loan At Securitization
Note Rate At Securitization Cutoff Annualized Gross Interest Rate Applicable To The Calculation Of
Scheduled Interest
Servicer And Trustee Fee Rate Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 2 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 3 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 4 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 5 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Net Rate At Securitization Cutoff Annualized Interest Rate Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At Securitization The Periodic Scheduled Principal & Interest Payment
# Of Properties The Number Of Properties Underlying The Mortgage Loan
Property Name If Number Of Properties Is Greater Than 1 Then "Various"
Property Address If Number Of Properties Is Greater Than 1 Then "Various"
Property City If Number Of Properties Is Greater Than 1 Then "Various"
Property State If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code If Number Of Properties Is Greater Than 1 Then "Various"
Property County If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code If Number Of Properties Is Greater Than 1 Then "Various" (See Property Type
Code Legend)
Net Square Feet At Securitization If Number Of Properties Is Greater Than 1 Then "Various"
# Of Units/Beds/Rooms At Securitization If Number Of Properties Is Greater Than 1 Then "Various"
Year Built If Number Of Properties Is Greater Than 1 Then "Various"
NOI At Securitization Net Operating Income At Securitization
DSCR At Securitization DSCR At Securitization
Appraisal Value At Securitization Appraisal Value At Securitization
Appraisal Date At Securitization Appraisal Date At Securitization
Physical Occupancy At Securitization Physical Occupancy At Securitization
Revenue At Securitization Revenue At Securitization
Operating Expenses At Securitization Expenses At Securitization
Securitization Financials As Of Date Securitization Financials As Of Date
Recourse (Y/N) Y=Yes, N=No
Ground Lease (Y/N) Y=Yes, N=No
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) Y=Yes, N=No
Collection Of Other Reserves (Y/N) Y=Yes, N=No
Lien Position At Securitization 1=First, 2=Second...
</TABLE>
<PAGE>
CSSA Set-Up Data Record Layout
Exhibit M-10
<TABLE>
<CAPTION>
Field Name Field Number Type Format
<S> <C> <C> <C>
Transaction Id (pool ID) 1 AN XXX97001
Group Id (subgroup within a pool) 2 AN XXX9701A
Loan Id (loan number) 3 AN 00000000012345
Prospectus Id 4 AN 123
Distribution Date 5 AN YYYYMMDD
Current Beginning Scheduled Balance 6 Numeric 100000.00
Current Ending Scheduled Balance 7 Numeric 100000.00
Paid To Date 8 AN YYYYMMDD
Current Index Rate 9 Numeric 0.09
Current Note Rate 10 Numeric 0.09
Maturity Date 11 AN YYYYMMDD
Servicer and Trustee Fee Rate 12 Numeric 0.00025
Fee Rate/Strip Rate 1 13 Numeric 0.00001
Fee Rate/Strip Rate 2 14 Numeric 0.00001
Fee Rate/Strip Rate 3 15 Numeric 0.00001
Fee Rate/Strip Rate 4 16 Numeric 0.00001
Fee Rate/Strip Rate 5 17 Numeric 0.00001
Net Pass-Through Rate 18 Numeric #VALUE!
Next Index Rate 19 Numeric 0.09
Next Note Rate 20 Numeric 0.09
Next Rate Adjustment Date 21 AN YYYYMMDD
Next Payment Adjustment Date 22 AN YYYYMMDD
Scheduled Interest Amount 23 Numeric 1000.00
Scheduled Principal Amount 24 Numeric 1000.00
Total Scheduled P&I Due 25 Numeric 1000.00
Neg am/Deferred Interest Amount 26 Numeric 1000.00
Unscheduled Principal Collections 27 Numeric 1000.00
Other Principal Adjustments 28 Numeric 1000.00
Liquidation/Prepayment Date 29 AN YYYYMMDD
Prepayment Penalty/Yield Maint Received 30 Numeric 1000.00
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00
Liquidation/Prepayment Code 32 Numeric 1
Most Recent ASER $ 33 Numeric 1000.00
Most Recent ASER Date 34 AN YYYYMMDD
Cumulative ASER $ 35 Numeric 1000.00
Actual Balance 36 Numeric 100000.00
Total P&I Advance Outstanding 37 Numeric 1000.00
Total T&I Advance Outstanding 38 Numeric 1000.00
Other Expense Advance Outstanding 39 Numeric 1000.00
Status of Loan 40 AN 1
In Bankruptcy 41 AN Y
Foreclosure Date 42 AN YYYYMMDD
REO Date 43 AN YYYYMMDD
Bankruptcy Date 44 AN YYYYMMDD
Net Proceeds Received on Liquidation 45 Numeric 100000.00
Liquidation Expense 46 Numeric 100000.00
Realized Loss to Trust 47 Numeric 10000.00
Date of Last Modification 48 AN YYYYMMDD
Modification Code 49 Numeric 1
Modified Note Rate 50 Numeric 0.09
Modified Payment Rate 51 Numeric 0.09
Preceding Fiscal Year Revenue 52 Numeric 1000.00
Preceding Fiscal Year Expenses 53 Numeric 1000.00
Preceding Fiscal Year NOI 54 Numeric 1000.00
Preceding Fiscal Year Debt Service Amt. 55 Numeric 1000.00
Preceding Fiscal Year DSCR 56 Numeric 2.55
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85
Preceding FY Financial As of Date 58 AN YYYYMMDD
Second Preceding FY Revenue 59 Numeric 1000.00
Second Preceding FY Expenses 60 Numeric 1000.00
Second Preceding FY NOI 61 Numeric 1000.00
Second Preceding FY Debt Service 62 Numeric 1000.00
Second Preceding FY DSCR 63 Numeric 2.55
Sec Preceding FY Physical Occupancy 64 Numeric 0.85
Sec Preceding FY Financial As of Date 65 AN YYYYMMDD
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00
Most Recent Fiscal YTD NOI 68 Numeric 1000.00
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00
Most Recent Fiscal YTD DSCR 70 Numeric 2.55
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD
Most Recent Appraisal Date 74 AN YYYYMMDD
Most Recent Appraisal Value 75 Numeric 100000.00
Workout Strategy Code 76 Numeric 1
Most Recent Spec Service Transfer Date 77 AN YYYYMMDD
Most Recent Master Service Return Date 78 AN YYYYMMDD
Date Asset is Expected to Be Resolved 79 AN YYYYMMDD
Year Last Renovated 80 AN 1997
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
<S> <C>
Transaction Id (pool ID) Unique Issue Identification Mnemonic
Group Id (subgroup within a pool) Unique Identification Number Assigned To Each Loan Group Within An Issue
Loan Id (loan number) Unique Identification Number Assigned To Each Collateral Item In A Pool
Prospectus Id Unique Identification Number Assigned To Each Collateral Item In The Prospectus
Distribution Date Date Payments Made To Certificateholders
Current Beginning Scheduled Balance Outstanding Scheduled Principal Balance At The Beginning Of The Current Period
Current Ending Scheduled Balance Outstanding Scheduled Principal Balance At The End Of The Current Period
Paid To Date Due Date Of The Last Interest Payment Received
Current Index Rate Index Rate Used In The Determination Of The Current Period Gross Interest Rate
Current Note Rate Annualized Gross Rate Applicable To The Calculation Of The Current Period
Scheduled Interest
Maturity Date Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 2 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 3 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 4 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 5 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Net Pass-Through Rate Annualized Interest Rate Applicable To The Calculation Of The Current Period
Remittance Interest
Next Index Rate Index Rate Used In The Determination Of The Next Period Gross Interest Rate
Next Note Rate Annualized Gross Interest Rate Applicable To The Calculation Of The Next Period
Scheduled Interest
Next Rate Adjustment Date Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount Scheduled Gross Interest Payment Due For The Current Period
Scheduled Principal Amount Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due Scheduled Principal And Interest Payment Due For The Current Period
Neg am/Deferred Interest Amount Negative Amortization/Deferred Interest Amount Due For The Current Period
Unscheduled Principal Collections Unscheduled Payments Of Principal Received During The Related Collection Period
Other Principal Adjustments Unscheduled Principal Adjustments For The Related Collection Period
Liquidation/Prepayment Date Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yield Maint Received Additional Payment Required From Borrower Due To Prepayment Of Loan Prior
To Maturity
Prepayment Interest Excess (Shortfall) Scheduled Gross Interest Applicable To The Prepayment Amount
Liquidation/Prepayment Code See Liquidation/Prepayment Codes Legend
Most Recent ASER $ Excess Of The Principal Balance Over The Defined Appraisal Percentage
Most Recent ASER Date Date ASER Amount Applied To Loan
Cumulative ASER $ Cumulative ASER Amount
Actual Balance Outstanding Actual Principal Balance At the End of The Current Period
Total P&I Advance Outstanding Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding Outstanding Taxes & Insurance Advances At The End Of The Current Period
Other Expense Advance Outstanding Other Outstanding Advances At The End Of The Current Period
Status of Loan See Status Of Loan Legend
In Bankruptcy Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date Date Of Foreclosure
REO Date Date Of REO
Bankruptcy Date Date of Bankruptcy
Net Proceeds Received on Liquidation Net Proceeds Received On Liquidation To Be Remitted To The Trust Per
The Trust Documentation
Liquidation Expense Expenses Associated With The Liquidation To Be Netted From The Trust Per
The Trust Documentation
Realized Loss to Trust Liquidation Balance Less Net Liquidation Proceeds Received
Date of Last Modification Date Loan Was Modified
Modification Code See Modification Codes Legend
Modified Note Rate Note Rate Loan Modified To
Modified Payment Rate Payment Rate Loan Modified To
Preceding Fiscal Year Revenue Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI Preceding Fiscal Year Net Operating Income
Preceding Fiscal Year Debt Service Amt. Preceding Fiscal Year Debt Service Amount
Preceding Fiscal Year DSCR Preceding Fiscal Year Debt Service Coverage Ratio
Preceding Fiscal Year Physical Occupancy Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses Second Preceding Fiscal Year Expenses
Second Preceding FY NOI Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR Second Preceding Fiscal Year Debt Service Coverage Ratio
Sec Preceding FY Physical Occupancy Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Financial As of Date Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR Most Recent Fiscal Year To Date Debt Service Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date The Date Of The Latest Available Appraisal For The Property
Most Recent Appraisal Value The Latest Available Appraisal Value For The Property
Workout Strategy Code See Workout Strategy Codes Legend
Most Recent Spec Service Transfer Date Date Transferred To The Special Servicer
Most Recent Master Service Return Date Date Returned To The Master Servicer
Date Asset is Expected to Be Resolved Date Asset Is Expected To Be Resolved
Year Last Renovated Year Property Last Renovated
</TABLE>
<PAGE>
Field
Field Name Number Type Format
- ---------- ------ ---- ------
Transaction Id 1 AN XXX97001
Loan Id 2 AN 00000000012345
Prospectus Loan ID 3 AN 123
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3)
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN Text
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000
# Of Units/Beds/Rooms At Securitization 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at
Securitization 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Loan Amount 21 Numeric 5900900
Ground Lease (Y/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraised Value 25 Numeric 10000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant (Tenant Name) 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant (Tenant Name) 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000.000
3rd Largest Tenant (Tenant Name) 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000.00
Operating Expenses At Securitization 46 Numeric 1000000.00
NOI At Securitization 47 Numeric 1000000.00
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000.00
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
Preceding Fiscal Year Expenses 55 Numeric 1000000.00
Preceding Fiscal Year NOI 56 Numeric 1000000.00
Preceding Fiscal Year Debt Service Amt 57 Numeric 1000000.00
Preceding Fiscal Year DSCR 58 Numeric 1.3
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000.00
Second Preceding FY Expenses 62 Numeric 1000000.00
Second Preceding FY NOI 63 Numeric 1000000.00
Second Preceding FY Debt Service 64 Numeric 1000000.00
Second Preceding FY DSCR 65 Numeric 1.3
Second Preceding FY Physical Occupancy 66 Numeric 0.90
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
- ---------- -----------
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Prospectus Loan ID Unique Indentification Number Assigned To Each Collateral Item In
The Prospectus
Property ID Should contain Prospectus ID and property identifier, e.g., 1001-001,
1000-002
Distribution Date
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Property Name
Property Address
Property City
Property State
Property Zip Code
Property County
Property Type Code
Year Built
Year Last Renovated
Net Square Feet At Securitization RT, IN, WH, OF, MU, SS, OT - SF
# Of Units/Beds/Rooms At Securitization MF, MHP, LO, HC - Units
Property Status 1=FCL, 2-REO, 3=Defeased, 4=partial Releases, 5=Released, 6=Same as
at Securitization
Allocated Percentage of Loan at Securitization Issuer to allocate loan % attributable to property for multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current SPB for
associated loan
Current Allocated Loan Amount Maintained by servicer
Ground Lease (Y/N) Either Y=Yes, S=Subordinate, N=No ground lease
Other Escrow / Reserve Balances
Most Recent Appraisal Date
Most Recent Appraised Value
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing
Foreclosure Date
REO Date
Occupancy % Map to Most Recent Fiscal YTD Physical Occupancy in CSSA, multiply times
Current Allocated %
Occupancy Date
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant (Tenant Name) For Office, WH, Retail, Industrial, *Only if disclosed in the offering
document
Square Feet of Largest Tenant
2nd Largest Tenant (Tenant Name) For Office, WH, Retail, Industrial, *Only if disclosed in the offering
document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant (Tenant Name)
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date
Revenue At Securitization
Operating Expenses At Securitization
NOI At Securitization
DSCR At Securitization Multiply times the Allocated % at Securitization
Appraisal Value At Securitization
Appraisal Date At Securitization
Physical Occupancy At Securitization Multiply times the Allocated % at Securitization
Date of Last Inspection
Preceding FY Financial As of Date
Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI
Preceding Fiscal Year Debt Service Amt
Preceding Fiscal Year DSCR Multiply times the Allocated % at Securitization
Preceding Fiscal Year Physical Occupancy Multiply times the Allocated % at Securitization
Sec Preceding FY Financial As of Date
Second Preceding FY Revenue
Second Preceding FY Expenses
Second Preceding FY NOI
Second Preceding FY Debt Service
Second Preceding FY DSCR
Second Preceding FY Physical Occupancy
</TABLE>
