MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") dated as
of December 17, 1996 (the "Cut-off Date") is between Asset Securitization
Corporation, a Delaware corporation (the "Company"), and Nomura Asset Capital
Corporation, a Delaware corporation (the "Seller"). The Seller agrees to sell,
and the Company agrees to purchase, the mortgage loans (the "Mortgage Loans")
described in, and set forth in, the Mortgage Loan Schedule attached as Exhibit B
to the Pooling and Servicing Agreement dated as of December 1, 1996 (the
"Pooling and Servicing Agreement"), among the Company, AMRESCO Management, Inc.,
as servicer (the "Servicer"), LaSalle National Bank, as trustee (the "Trustee"),
and ABN AMRO Bank N.V., as fiscal agent, relating to the issuance of the Asset
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1996-MD VI (the "Certificates"). Terms used without definition herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement or, if not defined therein, in the Underwriting Agreement, dated
December 17, 1996 (the "Underwriting Agreement"), by and between the Company and
Nomura Securities International, Inc. (in such capacity, the "Underwriter") or
in the Purchase Agreement, dated December 17, 1996 (the "Purchase Agreement"),
by and between the Company and Nomura Securities International, Inc. (in such
capacity, the "Placement Agent").
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans shall be an amount agreed upon by the parties in
a separate writing, which amount shall be payable by the Company to the Seller
on the Closing Date (except as provided below) in immediately available funds.
The closing for the purchase and sale of the Mortgage Loans shall take place at
the offices of Cadwalader, Xxxxxxxxxx & Xxxx, New York, New York, at 10:00 a.m.
New York time, on the Closing Date.
On the Closing Date, the Company shall pay the Purchase Price to the
Seller. As of the Closing Date, the Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Company all the right, title and interest
of the Seller in and to the Mortgage Loans, including all interest and principal
due on or with respect to the Mortgage Loans on or after the Cut-off Date,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, primary mortgage or other insurance
policies. The Company hereby directs the Seller, and the Seller hereby agrees,
to deliver to the Trustee all documents, instruments and agreements required to
be delivered by the Company to the Custodian on behalf of the Trustee under the
Pooling and Servicing Agreement and such other documents, instruments and
agreements as the Company or the Trustee shall reasonably request.
2. Representations and Warranties. (a) The Seller hereby represents and
warrants to the Company as of the Closing Date that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with
full power and authority to carry on its business as presently
conducted by it;
(ii) The Seller has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and
has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby,
including, but not limited to, the power and authority to sell,
assign and transfer the Mortgage Loans in accordance with this
Agreement;
(iii) Assuming the due authorization, execution and delivery of this
Agreement by the Company, this Agreement and all of the
obligations of the Seller hereunder are the legal, valid and
binding obligations of the Seller, enforceable in accordance with
the terms of this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance
of its obligations hereunder by the Seller does not conflict with
any provision of any law or regulation to which the Seller is
subject, or conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of any
agreement or instrument to which the Seller is a party or by
which it is bound, or any order or decree applicable to the
Seller, or result in the creation or imposition of any lien on
any of the Seller's assets or property, which would materially
and adversely affect the ability of the Seller to carry out the
transactions contemplated by this Agreement. The Seller has
obtained any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Seller of this Agreement;
(v) There is no action, suit or proceeding pending against the Seller
in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
ability of the Seller to carry out its obligations under this
Agreement or have a material adverse effect on the financial
condition of the Seller or the ability of the Seller to perform
its obligations under this Agreement; and
(vi) The Originator is approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act.
(b) The Seller hereby represents and warrants with respect to each
Mortgage Loan, except as disclosed in Exhibit A, that as of the date specified
below or, if no such date is specified, as of the Closing Date:
(i) Immediately prior to the transfer and assignment to the Company,
each related Note and Mortgage was not subject to an assignment
(other than to the Seller) or pledge, and the Seller had good
title to, and was the sole owner of, such Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan subject to matters
described in clause (xi) below;
(iv) Each related Note, Mortgage, Assignment of Leases and Rents (if
any) and other agreement executed in connection with such
Mortgage Loan are legal, valid and binding obligations of the
related Borrower, enforceable in accordance with their terms,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors rights generally, or by general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(v) Each related Assignment of Leases and Rents, if any, creates a
valid, first priority assignment of, or a valid first priority
security interest in, certain rights under the related leases,
subject only to a license granted to the related Borrower to
exercise certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate the
related Mortgaged Property; no person other than the related
Borrower owns any interest in any payments due under such leases
that is superior to or of equal priority with the mortgagee's
interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Company constitutes the legal, valid and binding assignment of
such Mortgage from the Seller to the Company and any related
Reassignment of Assignment of Leases and Rents, if any, or
assignment of any other agreement executed in connection with
such Mortgage Loan, from the Seller to the Company, constitutes
the legal, valid and binding assignment from the Seller to the
Company, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium
or other laws relating to or affecting creditors' rights
generally, or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(vii) Since origination, and except as set forth in the related
Mortgage File, such Mortgage Loan has not been waived, modified,
altered, satisfied, canceled, subordinated or rescinded, and each
related Mortgaged Property has not been released from the lien of
the related Mortgage in any manner that materially interferes
with the security intended to be provided by such Mortgage;
(viii) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to the matters described
in clause (xi) below), and, as of the date of the origination of
such Mortgage Loan, such Mortgaged Property is free and clear of
any mechanics' and materialmen's liens which are prior to or
equal with the lien of the related Mortgage, except those which
are insured against by a lender's title insurance policy (as
described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related Borrower in
the Mortgage Loan not to be true;
(x) The Seller has no knowledge that the representations and
warranties made by each related Borrower in such Mortgage Loan
are not true in any material respect;
(xi) The lien of each related Mortgage is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring
the Originator, its successors and assigns, or the holder of the
related Note as to a valid and first priority lien on the related
Mortgaged Property and the first priority lien of the Mortgage in
at least the original principal amount of such Mortgage Loan or
Allocated Loan Amount of the related Mortgaged Property (as set
forth on the Mortgage Loan Schedule which is an exhibit to the
Pooling and Servicing Agreement) after all advances of principal,
subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet
due and payable, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none
of which, individually or in the aggregate, materially interferes
with the current use or operation of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
related Borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property and (C) the
exceptions (general and specific) set forth in such policy, none
of which, individually or in the aggregate, materially interferes
with the security intended to be provided by such Mortgage or
with the related Borrower's ability to pay its obligations when
they become due or the value, use or operation of the Mortgaged
Property; the Seller or its successors or assigns is the sole
named insured of such policy, and such policy is in full force
and effect upon the consummation of the transactions contemplated
by this Agreement; no claims have been made under such policy,
and the Seller has not done anything, by act or omission, and the
Seller has no knowledge of any matter, that would impair or
diminish the coverage of such policy; to the extent required by
applicable law, the insurer issuing such policy is qualified to
do business in the jurisdiction in which the related Mortgaged
Properties are located;
(xii) The proceeds of such Mortgage Loan have been fully disbursed
(except for Funds in the Prime Retail II Pool Loan Expansion
Account, which has been fully funded but not disbursed), and
there is no requirement for future advances thereunder, and the
Seller covenants that it will not make any future advances under
the Mortgage Loan to the related Borrower;
(xiii) Based on inspection reports contained in the related Mortgage
File, each related Mortgaged Property is free of any material
damage for which amounts at least sufficient to cure such damage
have not been reserved or that would affect materially and
adversely the value of such Mortgaged Property as security for
the Mortgage Loan and is in good repair, and there is no
proceeding pending for the total or partial condemnation of such
Mortgaged Property;
(xiv) Each of the related Borrowers is in possession of all material
licenses, permits and other authorizations necessary and required
by all applicable laws for the conduct of its business that if
not obtained would have a material adverse effect on the conduct
of its business or its ability to repay the related Mortgage
Loan, and all such licenses, permits and authorizations are valid
and in full force and effect, and if a related Mortgaged Property
is improved by a hotel, the most recent inspection or review by
the franchiser, if any, did not cite such Mortgaged Property for
material violations of the related franchise agreement which have
not been cured;
(xv) The Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months preceding the
Cut-off Date;
(xvi) Such Mortgage Loan does not have a shared appreciation feature,
other contingent interest feature or negative amortization;
(xvii) Such Mortgage Loan is a whole loan and no other party holds a
participation interest in the Mortgage Loan. Neither the
Originator nor any of its affiliates has or is entitled to any
preferred or any other direct equity interest in a Borrower;
(xviii) The Mortgage Rate (exclusive of any default interest late
charges, or prepayment premium) of such Mortgage Loan complied as
of the date of origination with, or is exempt from, applicable
state or federal laws, regulations and other requirements
pertaining to usury; any and all other requirements of any
federal, state or local laws applicable to such Mortgage Loan
have been complied with as of the date of origination of such
Mortgage Loan;
(xix) No fraudulent acts were committed by the Seller during the
origination process of any such Mortgage Loan;
(xx) All taxes and governmental assessments that prior to the Closing
Date became due and owing in respect of each related Mortgaged
Property have been paid, are being appealed, or an escrow of
funds in an amount sufficient to cover such payments has been
established;
(xxi) All escrow deposits and payments required pursuant to the
Mortgage Loans are in the possession, or under the control, of
the Seller or its agent, and there are no deficiencies in
connection therewith;
(xxii) To the extent required under applicable law, as of the Cut-off
Date, the Seller was authorized to transact and do business in
the jurisdiction in which each related Mortgaged Property is
located at all times when it held the Mortgage Loan;
(xxiii) Except as disclosed in the Prospectus Supplement dated December
10, 1996 relating to the Certificates (the "Prospectus
Supplement"), each related Mortgaged Property is insured by a
fire and extended perils insurance policy, issued by an insurer,
or reinsured by a reinsurer, meeting the requirements of the
related Loan Documents, in an amount not less than the
replacement cost and the amount necessary to avoid the operation
of any co-insurance provisions with respect to the Mortgaged
Property; each related Mortgaged Property is also covered by
business interruption insurance for a minimum of twelve months
and comprehensive general liability insurance in amounts
generally required by institutional lenders for similar
properties; all premiums on such insurance policies required to
be paid as of the date hereof have been paid; such insurance
policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; each related
Mortgage or Loan Agreement obligates the related Borrower to
maintain all such insurance and, at such Borrower's failure to do
so, authorizes the mortgagee to maintain such insurance at the
Borrower's cost and expense and to seek reimbursement therefor
from such Borrower;
(xxiv) There is no default, breach, violation or event of acceleration
existing under the related Mortgage or the related Note and, to
the Seller's knowledge, no event (other than payments due but not
yet delinquent) that, with the passage of time or with notice and
the expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of acceleration;
(xxv) Such Mortgage Loan has not been more than one month delinquent
since origination and as of the Cut-off Date was not one month or
more delinquent;
(xxvi) Each related Mortgage contains customary and enforceable
provisions subject to matters described in clause (iv) above such
as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of
the benefits of the security, including realization by judicial
or, if applicable, non-judicial foreclosure, and there is no
exemption available to the related Borrower which would interfere
with such right to foreclose;
(xxvii) In each related Mortgage or Loan Agreement, the related Borrower
represents and warrants that, except as set forth in certain
environmental reports or other documents previously provided to
the Rating Agencies and to the best of its knowledge, it has not
used, caused or permitted to exist and will not use, cause or
permit to exist on the related Mortgaged Property any Hazardous
Materials in any manner which violates federal, state or local
laws, ordinances, regulations, orders, directives or policies
governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of
Hazardous Materials; the related Borrower agrees to indemnify,
defend and hold the mortgagee and its successors and assigns
harmless from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and claims of any
kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by, or asserted against, any such party
resulting from a breach of certain representations, warranties or
covenants given by the Borrower in such Mortgage or Loan
Agreement, subject to certain exceptions with respect to the
culpability of the indemnified parties; a Phase I environmental
report was conducted by a reputable environmental consultant in
connection with such Mortgage Loan, which report, except as
disclosed in the Prospectus Supplement, did not indicate any
material non-compliance or material existence of Hazardous
Materials; to the best of the Seller's knowledge, each related
Mortgaged Property, except as disclosed in the Prospectus
Supplement, is in material compliance with all applicable
federal, state and local laws pertaining to environmental
hazards, and to the best of Seller's knowledge, except as
disclosed in the Prospectus Supplement, no notice of violation of
such laws has been issued by any governmental agency or
authority; the Seller has not taken any action which would cause
the related Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental
hazards;
(xxviii) Each related Mortgage or Loan Agreement contains provisions for
the acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, without complying with the requirements
of the Mortgage or Loan Agreement or obtaining the prior written
consent of the Mortgagee, the related Mortgaged Property, or any
interest therein, is directly or indirectly transferred or sold,
or encumbered in connection with subordinate financing;
(xxix) To Seller's knowledge, and in reliance upon an opinion of counsel
to the extent received, (A) when the related UCC financing
statements are filed and indexed in the appropriate state and
local offices for such filing and indexing, such filings shall be
sufficient to perfect a lien on the Mortgaged Property described
therein to the extent a security interest can be perfected under
the UCC and (B) no re-filing of such financing statements will be
necessary for the perfection of the lien intended to be created
or the enforcement of such Mortgage Loan against the related
Borrower, other than filing UCC continuation statements with the
appropriate state and local offices as required under the law of
the applicable state to continue the perfection of the liens
perfected by UCC financing statements;
(xxx) (A) the Mortgage Loan is directly secured by one or more
Mortgages on commercial property, and (B) the fair market value
of such real property, as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage Loan, was at
least equal to 80% of the principal amount of the Mortgage Loan
(1) at origination (or if the Mortgage Loan has been modified in
a manner that constituted a deemed exchange under Section 1001 of
the Code at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable, the
date of the last such modification) or (2) at the Closing Date;
provided that the fair market value of the real property interest
must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan (unless
such senior lien also secures a Mortgage Loan, in which event the
computation described in clauses (1) and (2) shall be made on an
aggregated basis) and (y) a proportionate amount of any lien that
is in parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in
clauses (1) and (2) shall be made on an aggregate basis);
(xxxi) With respect to each Mortgaged Property where the estate of the
related Borrower therein is a leasehold estate;
(A) the related lease or a memorandum thereof has been or will
be duly recorded; such lease or an estoppel letter or lender
protective agreement between the Seller and the lessor under
such lease permits the interest of the lessee thereunder to
be encumbered by the related Mortgage; and, to the best of
Seller's knowledge, there has been no material amendment or
modification of such lease since its recordation, with the
exception of written amendments or modifications which are
part of the related Mortgage File;
(B) except as may be indicated in the related title insurance
policy, to the best of Seller's knowledge, the lessee's
interest in the related lease and the leasehold estate
created thereby is not subject to any liens or encumbrances
superior to, or of equal priority with, the related
Mortgage;
(C) the Seller and, subsequent to any assignment of the related
Mortgage, the Seller's successors and assigns, have the
right to succeed to the Borrower's interest in the related
lease upon notice to, but without the consent of, the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date), provided, in the event
that Seller, or its successors and assigns, shall have
succeeded to the interest of the Borrower, as lessee under
the lease, by foreclosure of the related Mortgage or
acceptance of an assignment in lieu thereof or other
remedies available to the mortgagee, the consent of such
lessor may be required for any subsequent assignment;
(D) as of the date the related Mortgage Loan was made, the
related lease was in full force and effect and, to such
lessor's knowledge, no default had occurred under such
lease, nor, to such lessor's knowledge, was there any then
existing condition which, but for the passage of time or the
giving of notice, would have resulted in a default under the
terms of such lease, and as of the date hereof, Seller has
received no written notice of a default or event of default
on the part of a Borrower from the lessor of such Borrower's
lease;
(E) the related lease or an estoppel letter or lender protective
agreement requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee, provided that
the mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such lease,
estoppel letter or lender protective agreement; the
mortgagee has provided the lessor with such notice;
(F) the related lease, estoppel letter or lender protective
agreement provides a mortgagee with a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such lease)
to cure any default under such lease, which is curable after
the receipt of notice of any such default before the lessor
thereunder may terminate such lease;
(G) (1) the related lease has a term (including renewals, if
exercised) which extends not less than ten years beyond the
maturity date of the related Mortgage Note and (2) to the
extent that the representation under the foregoing clause
(1) is based on the existence of renewal options, the terms
on which the related borrower has the right to enter into
such renewals, and any conditions to the related borrower's
right to enter into such renewals, are commercially
reasonable;
(H) under the terms of the related lease, estoppel letter,
lender protection agreement and the related Mortgage, taken
together, any insurance proceeds other than in respect of a
total or substantially total loss or taking, will be applied
either (1) to the repair or restoration of all or part of
the related Mortgaged Property, with the lessor, mortgagee
or a depository appointed pursuant to the terms of such
lease having the right to hold and disburse such proceeds as
the repair or restoration progresses, or (2) to the payment
of the outstanding principal balance of the applicable
Mortgage Loan together with any accrued interest thereon;
(I) the related lease does not impose restrictions on subletting
of all or portions of the Mortgaged Property by lessee which
would be viewed, as of the date of origination of such
Mortgage Loan, as commercially unreasonable by the Seller;
and
(J) the related lease or an estoppel letter provides that in the
event that a lessee in bankruptcy rejects any or all of its
leases; the leasehold mortgagee will have the right to
succeed to the ground lessee's position under the lease,
provided that written notice has been sent to the lessor and
all defaults with respect to the lease are cured.
(xxxii) The Mortgage Loan Schedule is complete and accurate in all
respects;
(xxxiii) No advance of funds has been made, directly or indirectly, by the
Seller to any borrower and no funds have been received from any
person other than the borrower for or on account of payments due
on a Note or Mortgage;
(xxxiv) No Mortgage Loan is secured by collateral that is not included in
the Trust Fund;
(xxxv) Each Mortgage Loan that is cross-collateralized is
cross-collateralized only with Notes included in the Trust Fund;
and
(xxxvi) Each Mortgaged Property that is located in a federally designated
flood hazard area is covered by an insurance policy covering
flood losses.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling and
Servicing Agreement, the Seller and the Company shall be given notice of (i) any
breach of any representation or warranty contained in Section 2(b)(i), (ii),
(iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xv), (xvi), (xvii),
(xviii), (xix), (xx), (xxii), (xxiv), (xxix) or (xxx) and (ii) any breach of any
representation or warranty contained in Section 2(b), (x), (xiii), (xiv), (xxi),
(xxiii), (xxv), (xxvi), (xxvii), (xxviii), (xxxi), (xxxii), (xxxiii), (xxxiv),
(xxxv) and (xxxvi) that materially and adversely affects the value of such
Mortgage Loan or the interests of the holders of the Certificates therein.
(b) Within 90 days of the receipt of the notice (or with respect to the
representation and warranty contained in Section 2(b)(xxx), discovery) of a
breach provided for in clause (a), the Seller shall either (i) repurchase the
related Mortgage Loan at the Repurchase Price or (ii) promptly cure such breach
in all material respects; provided, however, that in the event that such breach
(other than a breach of Section 2(b)(xxx)) is capable of being cured but not
within such 90 day period and the Seller has commenced and is diligently
proceeding with the cure of such breach within such 90 day period, the Seller
shall have an additional 90 days to complete such cure, provided, further, that
with respect to such additional 90 day period the Seller shall have delivered an
officer's certificate to the Trustee and the Securities setting forth the reason
such breach is not capable of being cured within the initial 90 day period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such breach will be cured within the
additional 90 day period; and provided, further, that in the event that the
Seller fails to complete the cure of such breach within such additional 90 day
period, the Repurchase Price shall also include interest at the Advance Rate on
any Advance made by the Servicer in respect of the Mortgage Loan to which such
breach related. Upon any such repurchase of a Mortgage Loan by the Seller, the
Company shall execute and deliver such instruments of transfer or assignment
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto) and the rights with respect thereto
under the applicable Originator's Mortgage Loan Purchase Agreement (including,
without limitation, the rights and remedies with respect to representations and
warranties made by the Originator thereunder relating to such Mortgage Loan),
and shall deliver the related Mortgage File to Seller or its designee after
receipt of the related repurchase price.
(c) The Seller hereby acknowledges the assignment by the Company to the
Trustee, as trustee under the Pooling and Servicing Agreement, for the benefit
of the Holders of the Certificates, of the representations and warranties
contained herein and of the obligation of the Seller to repurchase a Mortgage
Loan pursuant to this Section. The Trustee or its designee may enforce such
obligation as provided in Section 9 hereof.
4. Opinions of Counsel. The Seller hereby covenants to the Company to,
simultaneously with the execution hereof, deliver or cause to be delivered to
the Company opinions of counsel as to various corporate matters in form
satisfactory to the Company.
5. Underwriting. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans, reasonably requested by the Company in order to perform any of
its obligations or satisfy any of the conditions on its part to be performed or
satisfied pursuant to the Underwriting Agreement or the Purchase Agreement, at
or prior to the Closing Date.
6. Successor Borrowers. The Company hereby agrees that in the event that
the Seller is obligated to establish an entity to succeed to the obligations of
a Borrower upon the defeasance with respect to the related Mortgage Loan, the
Company shall, or shall cause the Servicer under the Pooling and Servicing
Agreement to, establish such a successor entity, in each case in accordance with
the provisions of the related Loan Documents.
7. Costs. The Company shall pay all expenses incidental to the performance
of its obligations under the Underwriting Agreement and the Purchase Agreement,
including without limitation (a) any recording fees or fees for title policy
endorsements and continuations, (b) the expenses of preparing, printing and
reproducing the Prospectus Supplement, the Private Placement Memorandum, the
Underwriting Agreement, the Placement Agreement, the Pooling and Servicing
Agreement and the Certificates and (c) the cost of delivering the Certificates
to the office of the Underwriter or the purchaser of the Certificates, as
applicable, insured to the satisfaction of the Underwriter or such purchaser, as
applicable.
8. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 2 World Xxxxxxxxx Xxxxxx - Xxxxxxxx X, Xxx
Xxxx, Xxx Xxxx 00000-0000 attention of Manager - Mortgage Finance Department or,
if sent to the Seller, will be mailed, delivered or telegraphed and confirmed to
it at 2 World Xxxxxxxxx Xxxxxx - Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000
attention of Manager - Mortgage Finance Department.
9. Trustee Beneficiary. The representations, warranties and agreements made
by the Seller in this Agreement are made for the benefit of, and may be enforced
by or on behalf of, the Trustee and the Holders of Certificates to the same
extent that the Company has rights against the Seller under this Agreement in
respect of representations, warranties and agreements made by the Seller herein
and such representations and warranties shall survive delivery of the respective
Mortgage Files to the Trustee until the termination of the Pooling and Servicing
Agreement.
10. Miscellaneous. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought. This Agreement may not be changed in
any manner which would have a material adverse effect on the Holders of
Certificates without the prior written consent of the Trustee. The Trustee shall
be protected in consenting to any such change to the same extent provided in
Section 10.07 of the Pooling and Servicing Agreement. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Section 9 hereof.
11. Third Party Beneficiary. Nomura Securities International, Inc. is an
intended third party beneficiary of the representations and warranties of the
Seller set forth in Section 2 hereof.
IN WITNESS WHEREOF, the Company and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
ASSET SECURITIZATION CORPORATION
By:-------------------------------
Name:
Title:
NOMURA ASSET CAPITAL CORPORATION
By: -------------------------------
Name:
Title:
EXHIBIT A
Exceptions to Representations and Warranties
Clause of
Section 2(b): Exception:
-------------- -----------------------------------------------------------------
(xxxi)(C) The lease for the Prime Retail II Pool Property known as Magnolia
Bluff Factory Shops provides that the Seller's successors and
assigns have the right to foreclose on the fee interest of the
lessor upon the occurrence of an event of default under the Prime
Retail II Pool Loan.
(xxxi)(C) The lease for a portion of the Xxxxxx Square PS Property provides
that a purchaser at any execution sale of the lease and the
leasehold estate thereby created in connection with any
proceedings for the foreclosure of the related Mortgage shall
with the consent of the lessor (to the extent required under the
lease) be deemed to be a permitted assignee or transferee under
the lease and that such party shall be deemed to have agreed to
perform all of the terms, covenants and conditions on the part of
the related Xxxxxx Square Borrower to be performed under the
lease from and after the date of such purchase, assignment or
transfer (but not for any obligations or liabilities accruing
prior to such date), but only for so long as such purchaser,
assignee or transferee is the owner of the lease and the
leasehold estate thereby created.
(xxxi)(D) The lessor under the lease for a portion of the Xxxxxx Square PS
Property has notified the related Xxxxxx Square Borrower of a
dispute with respect to the amount of rent payable for the period
from April 1, 1994 through March 31, 1997. The lessor has not
delivered notice of a default with respect to such payments. In
the related ground lessor estoppel certificate, the lessor has
represented and warranted to the lender under the related
Mortgage Loan that the related Xxxxxx Square Borrower is not in
default under the lease. The disputed amount of $72,072 is
required to be reserved as disclosed in the Prospectus
Supplement.
(xxxi)(G) Except for the lease with respect to the Prime Retail II Pool
Property known as Magnolia Bluff Factory Shops, in which case the
lessor has subjected its fee interest to the related Mortgage.
(xxxi)(H) Except, in the case of the ground lease on the Cincinnati Airport
Radisson, with respect to a loss not susceptible to repair in 90
days where the Columbia Sussex II Pool Borrower has, with the
consent of the lender, terminated the ground lease (and depending
on how much time remains in the lease term) the ground lessor may
be entitled to unspecified portions of the proceeds.
(xxxi)(J) Except for the lease with respect to the Prime Retail II Pool
Property known as Magnolia Bluff Factory Shops.
(xxxiii) With respect to the Prime Retail II Pool Loan, the Seller has
agreed, under certain circumstances, to pay a portion of the
Defeasance Deposit that may be required in November 2000 in order
to liquidate the Expansion Account (as defined in the related
Mortgages).
