HomeMy WebLinkAbout04-2593La SALLE BANK, NATIONAL ASSOCIATION, :
(f/k/a LASALLE NATIONAL BANK), as :
Trustee for the Certificateholders of ASSET :
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Petitioner,
NOMURA ASSET CAPITAL CORPORATION :
and ASSET SECURITIZATION CORPORATION,:
Respondent. :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
(Case No. 603339-03 in the Supreme
Court of the State of New York,
County of New York)
PETITION FOR ISSUANCE OF A SUBPOENA TO GIVE TESTIMONY AT A
DEPOSITION AND A SUBPOENA TO PRODUCE DOCUMENTS FOR USE IN A
MATTER PENDING IN A TRIBUNAL OUTSIDE THIS COMMONWEALTH
PURSUANT TO 42 PA. C.S..~ 5326
Petitioner LaSalle Bank, National Association ("LaSalle"), by and through its
undersigned counsel, hereby applies to this Court pursuant to 42 Pa. C.S. § 5326 for an order
directing the Prothonotary to issue a subpoena to compel a representative of Banzhoff &
Banzhoff, a resident of Cumberland County, Pennsylvania, to gi,v.e testimony by deposition and a .
subpoena to compel Banzhoff & Banzhof[to produce documents and things. In support of this
Petition, La Salle states the following:
1. LaSalle is a national banking association with its principal place of business in
Illinois.
2. Respondent Nomura Asset Capital Corporation ("Nomura") is a Delaware
corporation with its principal place of business in New York, New York.
3. Respondent Asset Securitization Corporation ("ASC") is a Delaware corporation
with its principal place of business in New York, New York.
4. On December 23, 2003, LaSalle filed a Complaint in the Supreme Court of the
State of New York, County of New York (Case No. 603339-03), against Nomura and ASC
alleging claims arising out of breaches of contractual representations, warranties and obligations
with regard to the sale and purchase cfa pool of commercial mortgage loans. A true and correct
copy of the Complaint is attached hereto as Exhibit '~A."
5. On March 15, 2004, the Supreme Court of the State of New York, County of New
York, issued an Order Granting Open Commissions for the obtaining of documents from and
taking of testimony of Banzhoff & Banzfloff~^as well as a C~)mmission directed to "The
Appropriate Authority in the State of Pennsylvania" authorizing the issuance of subpoenas for
service upon Bm~zhoff & Banzhoff. True and correct copies of the Order and Commission are
collectively attached hereto as Exhibit "B." ~9.~t.f~Tt~ ~ ~l~et5
6. It is believed and therefore averred that Banzhoff & Banzhof~as knowledge and ~$ }~n~k
documents relevant to the adjudication of the pending civil action in the Supreme Court of the
State of New York, County of New York, Case No. 6033,39-03. . . ,, ~.
7. Banzhoff & Banzhoffhas failed to produce a representative for oral examination
or to produce any of the requested documents and things in the possession of Banzhoff &
Banzhoff voluntarily.
8. LaSalle applies to this Court for the issuance of a subpoena to compel the ora!
examination of a representative of Banzhoff & Banzhof~y deposition in accordance with 42 Pa.
C.S. ~ 5326 and Pa. R. Civ. P. 4007.1.
10. LaSalle further applies to this Court for the issuance cfa subpoen, a to compel the
production of documents and things by Banzhoff & Banzhof~xin accordance with 2 Pa. C.S. §
5326 and Pa. R. Civ. P. 4009.21.
WHEREFORE, Petitioner LaSalle Bank, National Association, prays that this Honorable
Court issue an Order directing the Prothonotary to issue a subpoena to compel a representative of
Banzhoff & Banzhof~to give oral testin?,ony by deposiffon and to issue a subpoena to compel
Banzhoff & ~anznot~)^to proauce uocuments and tl~ings for use in me matter penaing in me
Supreme Court of the State of New York, County of New York (Case No. 60333%03).
Respectfully submitted,
BUCHANAN INGERSOLL, PC
Date: June 8, 2004
Pa. Att'y I.D. # 89214
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 237-4800
Timothy P. Palmer, Esquire
Pa. Att'y I.D. #86165
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attorneys for Petitioner
LaSalle Bank, National Association
3
Exhibit A
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LASALLE BANK NATIONAL ASSOCIATION
(f/ida LASALLE NATIONAL BANK), as Trustee
for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-
DS,
Plaintiff,
-against-
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION
CORPORATION,
Defendants.
Index No. :' 333 J
COMPLAINT
LaSalle Bank National Association (f/ida LaSalle National Bank) ("LaSalle" or
UTrustae"), as Trustee for Certificateholders of Asset Securitization Corporation Commemial
Mortgage Pass-Through Certificates, Sedes 1997-D5 ("Trust" or "Plaintiff') bdngs this action
against Nomura Asset Capital Corporation ("Nomura") and Asset Securitization Corporation
('ASC") (collectively "Defendants") as follows:
I. NATURE OF THE ACTION
1. This lawsuit seeks redress for Defendants' breaches of contractual
representations, warranties and obligations with respect to the sale and purchase of a pool of
commercial mortgage loans.
2. LaSalle is the appointed Trustee of the Plaintiff Trust pursuant to a Pooling and
Servicing Agreement dated as of October 24, 1997 (the "PSA"). Nomura is the Seller of
commercial mortgage loans under a related Mortgage Loan Purchase and Sale Agreement (the
"MLPSA") also dated as of October 24, 1997, between Nomura and ASC. In summary, Nomura
assembled and sold a pool of commercial mortgage loans to ASC under the terms of the
PLAINTIFFS' COMPLAINT - Page I
MLPSA. In turn, ASC transferred the pool of loans to the Trustee to be held in the Trust for the
benefit of investors who hold certificates representing interests in the Trust's pool of mortgage
loans, under the terms of the PSA.
3. As Trustee, LaSalle owns all right, title, and interest not only to the loans that
were contributed to the Trust, but also to all of the underlying documents relating to the loans
that were pooled to form the Trust.
4. Nomura, as Seller under the MLPSA, and ASC, as Depositor under the PSA,
breached various representations and warranties regarding the origination and underwriting
obligations with respect to the loans. In addition, Nomura and ASC breached their respective
obligations to create, maintain and/or provide the underlying origination and underwriting
documents to the Trust.
5. Despite notice and demand, Nomura and ASC failed and refused to cure their
breaches or to repurchase the Mortgage Loans as required under the terms of the MLPSA and
the PSA.
6. Plaintiff asserts causes of action against Defendants for breaches of their
representations and warranties regarding prudent loan origination and underwriting standards,
and for breach of their obligations to create, maintain and/or provide related origination
documents to the Trust.
II. PARTIES
LaSalle is a national banking association, with its principal place of business in
Illinois,
8.
Nomura is a Delaware corporation with its principal place of business in New
York, New York. Nomura may be served with process through its registered agent, CT Corp.,
111 Eighth Avenue, New York, New York 10011.
PLAINTIFFS' COMPLAINT - Page 2
9. Defendant ASC is a Delaware corporation with its principal place of business in
New York, New York. ASC may be served with process through its registered agent, CT Corp.,
111 Eighth Avenue, New York, New York 10011.
III. FACTUAL BACKGROUND
A. Commercial Mortgage Backed Securities
10. This case concerns a Commercial Mortgage Backed Securities (~CMBS")
transaction. A CMBS transaction packages loans for sale to a special purpose Trust that
qualifies as a pass-through entity for tax purposes. The Trust purchases a large, diversified
pool of loans using proceeds received through the issuance of certificates that are sold to the
ultimate investors - the "Ce~ificateholders." A trust indenture and related documentation
assodated with the certificates instruct the Trustee how to allocate the cash flows generated by
the loans in order to provide vadous groups of investors particular benefits depending on
differing classes of certificates they hold. Some Certificateholders receive pdodty distributions
with greater protection from economic risk in exchange for a lower expected yield; others have a
higher expected yield, but bear greater risk of loss if the loans in the pool do not perform as
expected.
11. Day-to-day oversight to administer the loans is done by the Master Servicer and
the Special Servicer. If a loan goes into default or if a default is imminent, the loan servicing
duties are transferred to a workout/collection specialist known as the Special Servicer. The
Trustee collects performance information from the Servicers and provides it to the
Certiflcateholders.
12. Unlike a conventional commercial loan transaction where a bank or other lender
will originate a loan, service it and bear the credit risk associated with holding it, in a CMBS
transaction, each of these functions are performed by different entities. The loan Originator will
either generate a loan through its own efforts or through the acquisition and aggregation of
PLAINTIFFS' COMPLAINT - Page 3
loans generated by smaller third parties. Following origination and funding, the Originator will
sell the mortgage notes to the Issuer of the mortgage-backed securities. In this role, the
originator is referred to as the Se/let. The Issuer is a single-purpose entity, typically a trust set
up to hold the assets (loans) which provide the cash flow to make payments on the certificates
issued by the trust and known as mortgage-backed securities. The Issuer engages one or more
Credit Rating Agencies to rate the various tranches (levels) of certificates that ars sold by the
trust to the Certificateholders (investors). A neutral third party is appointed to act as Trustee.
The Trustee's responsibilities include overseeing the distribution of cash to ensurs conformity
with trust requirements, as well as high-level oversight of the management of the trust to ensure
conformance with the trust indenture (which governs the management of the trust). A Master
Servicer is responsible for management of the loan portfolio owned by the trust, including
establishing policies and procedures for servicing, monitoring performance and handling cash
collections. The Master Servicer provides monthly reporting to the Trustee and rsmits cash to
the Trustee for distribution to the Certificateholders. A Special Sen/icer performs the
specialized handling of defaulted loans, including pursuing forsclosure and other loss mitigation
activities.
B. The MLPSA and the PSA
13. Although many documents are required to complete a securitization, two provide
the essential terms of a transaction. The Seller, which may also be the Originator, transfers its
ownership interest to the trust through a Mortgage Loan Purchase and Sale Agreement. Under
this agrsement, the Seller (if the Originator and Seller are different entities, they are usually
affiliates) provides rsprssentations and warranties regarding the underwriting for the loan and its
collateral. In addition, the Seller specifies the conditions under which it must repurchase loans.
Typically, the Seller warrants that the loans meet specified underwriting criteria and that the
loans are not in default as of the date of transfer.
PLAINTIFFS' COMPLAINT - Page 4
14. The second document essential to define the terms of a CMBS securitization is a
Pooling and Servicing Agreement, which outlines the duties and rights of the Trustee, Master
Servicer and Special Servicer, and sets forth the parameters for management of the loans.
Either the Pooling and Servicing Agreement or the Trust Indenture (or both) will specify the
pdority of payments from cash flow generated by the collateral (often referred to as the
"payment waterfall").
15. Because loan losses are the primary cause of losses sustained by
Certjflceteholders, a reliable loan origination system and consistent documentation standards
are necessary. In the conventional loan marketplace these functions typically reside in the
same entity, which owns the loans and bears the credit risk. In a CMBS transaction, however,
the Trust and Certificateholders bear the credit risk and so must depend upon the reputation,
integrity and representations and warranties of the Originator/Seller. This general format of a
CMBS transaction was followed in this case.
C. The NomundA$C Transaction
16. As of October 24, 1997, Nomura, as Seller, sold and transferred all title, rights
and obligations related to 155 commercial mortgage loans totaling approximately $1.8 billion
(the "Mortgage Loans") to ASC, pursuant to the terms of the MLPSA. In the MLPSA, Nomura
acknowledged that the sale of the Mortgage Loans was made in connection with the formation
of the Trust. The MLPSA further acknowledged that LaSalle would operate as Trustee of the
Trust and that the Trustee and the Certificateholders of the Trust were intended beneficiaries of
the MLPSA who were entitled to enforce the terms of the MLPSA directly against Nomura.
17. Contemporaneous with the execution of the MLPSA, ASC, LaSalle and others
entered into the PSA, also dated as of October 24, 1997. In the PSA, ASC, as Depositor,
conveyed to LaSalle, as Trustee, all of its title, rights and interests in the Mortgage Loans that
Nomura sold to ASC under the terms of the MLPSA. ASC then issued Commercial Mortgage
PLAINTIFFS' COMPLAINT - Page 5
Pass-Through Certificatas, Series 1997-D5, representing beneficial ownership interests in the
Trust, to the Certificateholders.
18. The PSA named a Master Servicer and a Special Servicer of the Trust. The PSA
provides in part that the Master Servicer acts as the servicing agent with respect to collection
activities, escrow management and similar day-to-day loan servicing operations. The Special
Servicer's obligations, on the other hand, relate to Mortgage Loans where events of default or
collateral instability have occurred. ORIX Capital Markets, L.L.C. ("OCM") is the successor-in-
interest as the Special Servicer under the PSA.
19. In the MLPSA, Nomura, as the Seller, made numerous representations and
warranties regarding the Mortgage Loans and the underwriting and origination process related
thereto. ASC confirmed in the PSA that: (a) Nomura's representations and warranties set forth
in the MLPSA were true as of October 24, 1997; and (b) the representations and warranties
survived delivery of the Mortgage Loans and files to the Trustee, and inured to the benefit of the
Certificateholders, the Trustee and the Servicers. In addition, ASC conveyed to the Trustee its
rights against the loan originators, including Nomura.
20. Upon notice of a breach of its representations and warranties under Section 2(b)
of the MLPSA, Nomura is obligated to cure the breaches or to repurchase the Mortgage Loans
within ninety days thereafter. Under the terms of the PSA, ASC is entitled to notice of any
breach of the MLPSA and is obligated to cure the breach or to repurchase the Mortgage Loans
within ninety days thereafter.
D. Representations and Warranties Regarding Loan Origination and Underwriting
21. Nomura breached its representations and warranties in the MLPSA in multiple
respects, including but not limited to the following examples:
a. MLPSA, Section 2(b)(xix):
(A) With respect to each Mortgage Loan originated by the Seller, . . . 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
pLAINTIFFS' COMPLAINT - Page 6
respect to each Mortgage Loan originated by Bloomfield, CSFB or Bostonia,...
the origination, servicing and collection of each Mortgage Loan is In all respects
legal, proper and prudent in accordance with customary industry standards.
Nomura breached its representations and warranties that the loan origination process for
the loans sold under the MLPSA was in all respects, legal, proper and prudent and in
accordance with customary industry standards. Examples of incidences where the loan
origination process was not legal, proper or prudent and in accordance with customary industry
standards include but are not limited to the following:
(1). The ratio between the amount of the loan and the value of the underlying
collateral, known in the industry as the loan-to-value ratio ("LTV"), is an important factor
in underwriting the risk associated with a commemial mortgage loan. The benchmark
LTV for commercial mortgage loans is 75%. A lower LTV is generally consistent with a
safer loan in that the loan amount is appreciably less than the value of the collateral. A
higher LTV generally reflects a riskier loan because there is more money lent relative to
the collateral value. The typical loan in this type of pool should not have an LTV of
higher than 80% for the most conservative property types and a 75% LTV for more
aggressive property types. Loans originated by or for Nomura, however, greatly
exceeded these normal standards. As examples: Loan #37: Super K-Mart San Antonio
had a 96% LTV~; Loan ~42: Builders Square - Daytona had a 98% LTV; Loan # 47:
Builders Square - El Paso had a 96% LTV; Loan #50: Builders Square-San Antonio had
a 96% LTV; and Loan #105: Banzhoff Mobile Home Park had an 87% LTV.
(2). Loan #120: Best Western-Old Hickory, is problematic for a number of
reasons. First, the borrower was permitted to accept an unusually high level of debt
relative to the property value and Nomura provided both mortgage financing to the
borrower and an additional $450,000 in mezzanine debt. The borrower used the loans
~ The loan numbers used herein reflect the loan numbers from the MLPSA and the PSA.
PLAINTIFFS' COMPLAINT - Page 7
to acquire a hotel. The appraisal for the loan shows a value of $3,350,000 and the
borrower's acquisition price was $3,300,000. Second, the borrower was permitted to
violate normal single purpose entity restrictions and take on both the mortgage loan and
the mezzanine loan. Third, the total LTV of the mortgage loan together with the
mezzanine loan was 90%. Fourth, the combination of the mortgage and mezzanine
loans also placed stress on the cash flow resulting in a 1.05 debt service coverage ratio
(IDSCR"). DSCR is equal to the annual net cash flow from the property divided by the
annual mortgage debt service obligations. For a hotel property with income variability
from year to year, a DSCR in the 1.50 to 1.75 range is warranted. Fifth, this loan is also
unusual because the loan originator disregarded important information related to the
borrower's experience and management. The sole interest holder of the borrower had
no equity in the property (the mezzanine loan was funded so the borrower could acquire
the project) and he had very limited experience running hotels (only operating two much
smaller projects). Nomura approved a manager for the property that was related to the
borrower's key principal and who had very little real estate experience. Ultimately, this
manager mismanaged the project and was fired.
(3). In Loan #64: Lancers Center, the loan originator ignored warning signs
that the property's anchor tenant, Wal-Mart, would eventually vacate the premises. Wal-
Mart constituted over 50% of the rentable space in the retail center, Within two years of
the closing of the loan, Wal-Mart vacated the premises and relocated to a super center
in close proximity to the mortgaged property. At the time of the loan closing, Wal-Mart
had recently developed a distribution center in the same market designed to service
Wal-Mart super centers. Upon information and belief, the new Wal-Mart super center
was in the planning process at the time. Significantly, and despite representations by
the borrower in the Lancers Center loan documents that tenant leases included
PLAINTIFFS' COMPLAINT - Page 8
provisions requiring continuous operations and non-competition, the Wal-Mart lease did
not have either the required continuous operations provision or the required covenant
prohibiting relocation in a competing market. Thus, Wal-Mart was free to leave the
center and open a competing location. To compound matters, the Wal-Mart lease
contains provisions restricting the Lancers Center from leasing to a suitable replacement
tenant.
(4). In Loan #154: Los Arcos Apartments, the property experienced negative
cash flows in 11 of 18 months before the MLPSA closing and, in the month before the
closing, the property manager was required to bring the electric account current and pay
a bond to ensure continued electric service to the property. In addition, the loan
payment in October 1997 was late and late fees were outstanding at the time of the
MLPSA closing.
The foregoing examples reflect shoddy underwriting and origination processes that were
not proper, prudent or in accordance with customary industry standards. Based upon the
information and documents currently available to LaSalle and OCM, the facts developed to date
with respect to the origination and underwriting of the Mortgage Loans, and the breaches
identified above, Plaintiff believes and alleges that some or all of the Mortgage Loans were not
originated or underwritten in accordance with the customary standards mandated in MLPSA
Section 2(b)(xix). As such, Nomura breached its representations and warranties with respect
thereto. In addition, upon information and betief, documents and files that Nomura and ASC are
obligated to create, maintain and/or provide to LaSalle, but which are not currently available to
LaSalle, will reflect specific breaches of these and other representations and warranties Nomura
made in the MLPSA.
b. MLPSA, Section 2(b)(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.
PLAINTIFFS' COMPLAINT - Page 9
Nomura breached this representation and warranty for loans in which borrowers
breached the terms of the loan documents. For example, the underlying loan documents for
Mortgage Loans secured by some retail properties sold under the MLPSA include a borrower
representation and warranty requiring all tenant leases encumbering the mortgaged property to
include provisions mandating continuous operations of the tenant's business on the premises
and prohibiting the tenant from operating a competing business at or near the mortgaged
property. In Loan #64: Lancers Center, as described above, the mortgaged property is a retail
center that was anchored by a Wal-Mart, constituting over 50% of the rentable space. Despite
the provisions in the Lancers Center loan documents requiring continuous operations and non-
compete provisions in tenant leases, the Wal-Mart lease does not include such provisions.
Thus, the borrower's representations in the loan documents are false and, in turn, Nomura
breached its representations and warranties in the MLPSA. Not surprisingly, Wal-Mart later
vacated the premises and opened a competing location less than a mile from the Lancers
Center.
c. MLPSA, Section 2(b)(xxv):
Such Mortgage Loan has not been 30 days or more delinquent since origination
and as of the Cut-off Date was not delinquent...
Nomura breached this representation and warranty because Loan #154: Los Arcos
Apartments was in monetary default, at least with respect to late fees, as of the Cut-off Date on
October 24, 1997.
d. MLPSA, Section 2(b)(xxxiii):
Each Borrower of a Mortgage Loan is an entity whose organizational documents
provide that It Is, and at least so long as the Mortgage Loan is outstanding will
continue to be, a slngle-purpoee 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 net have any assets
other than those related to its Interest In the property or Its financing, or any
indebtedness other than as permitted by the related Mortgage or the other
Mortgage Loan Documents, has its own books and records and accounts separate
PLAINTIFFS' COMPLAINT - Page 10
and apart from any other person, and holds Itself out as being a legal entity,
separate and apart from any other person).
The single purpose entity representation and warranty identifies very specific restrictions
that must be included in the borrower's formation documents. Although several files do not
include the borrower's formation documents to verify compliance with this representation and
warranty, the loan files that include borrower formation documents reflect that several
borrowers' formation documents do not comply with the specific single purpose entity
requirements under the MLPSA, including but not limited to: Loan #107: San Jacinto Plaza;
Loan #120: Best Westem-OId Hickory Inn: and Loan #138: Knights Inn-Bddgeville.
e. MLPSA, Section 2(b)(xy, xvii):
[N]either 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.
Nomura breached this representation and warranty for Loan #120: Best Western-Old
Hickory Inn because the Seller or one its affiliates has an obligation/right to make a capital
contribution to the borrower. The Seller holds a preferred limited partnership interest in the
borrower pursuant to the $450,000 mezzanine loan to the borrower and has the right to
contribute the mezzanine loan in exchange for a partnership interest.
f. MLPSA, Section 2(b)(xli) states:
With respect to each Mortgage Loan secured by a Credit Lease: ... (B) the Kmart
Credit Leases... [have] the benefit of a Lease Enhancement Policy for which the
premium has been paid in full;... (F) The 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: (a) the principal balance of the loan; (b) all accrued and
unpaid Interest on the loan, and (c) any other sums due and payable under the
loan, as of the termination date, except for a default by the Landlord under the
Credit Lease ....
The MLPSA has several specific representations and warranties with respect to the
leases for credit tenant projects. The MLPSA states that a credit tenant cannot terminate the
credit lease without paying the loan in full, except upon the default of the landlord/borrower.
There is no exception for a lease termination in the event of the tenant's bankruptcy. Therefore,
PLAINTIFFS' COMPLAINT -Page 11
there is a default of the following loans because the credit leases have been terminated: Loan
#37: Super K-Mart-San Antonio, Loan ~42: Builders Square - Daytona, Loan #47: Builders
Square - El Paso, and Loan #50: Builders Square - San Antonio.
g. MLPSA, Section 2(b)(xliv):
The Mortgage File that is being conveyed to the Trustee is complete.
As described herein, Nomura breached this representation and warranty because the
majority of the loans do not have complete Mortgage Files.
h. MLPSA, Section 2(b)(xlvi):
The Seller has not advanced additional funds for principal and interest or taxes
and Insurance (other than holdbecks at the closing for the related Mortgage Loan
from the proceeds of such loan).
Nomura breached this representation and warranty in connection with Loan #120: Best
Western-Old Hickory Inn because the Seller funded both the closing of this loan and also a
$450,000 me~7~nine loan to the borrower, that the borrower needed in order to acquire the
mortgaged property.
22. Each of the above-described breaches of representations and warranties under
the MLPSA also constitute breaches by ASC under PSA Section 2.03(b)(v).
E. Obligations Regarding Origination Documents and Files
23. Plaintiff's and Special Servicer OCM's abilities to evaluate the Mortgage Loans
and/or Nomura's and ASC's performance of their obligations, or tack thereof, are profoundly
hindered by the lack of complete loan origination and undenvriting files and documents.
24. As Trustee, LaSalle is charged with the responsibility to safeguard the Trust
assets for the benefit of the Certificateholders. As Special Servicer, OCM is contractually
obligated to service a portion of the loans that were contributed to the Trust for the benefit of the
Trustee, the Trust and the Certificateholders. In order to perform their obligations, the Trustee
and OCM must have access to the underlying documents that relate to the Mortgage Loans. In
particular, the Trustee and OCM are contractually entitled to a complete set of the origination
PLAINTIFFS' COMPLAINT - Page 12
and underwriting files regarding the Mortgage Loans and Defendants are contractually obligated
to create, maintain and/or provide such files to the Trustee and the Special Servicer.
25. Under paragraph 1 of the MLPSA, ASC directed Nomura, and Nomura agreed, to
deliver to the Trustee "all documents, instruments and agreements required to be delivered by
[ASC] to the Custodian on behalf of the Trustee under the [PSA] and such other documents,
instruments, and agreements as IASC] or the Trustee may reasonably request." Section 2.01 of
the PSA in turn requires that "[alii odginal documents relating to the Mortgage Loans which are
not delivered to the Custodian are and shall be held by IASC], the Trustee, or the Servicer, as
the case may be, for the benef'~ of the Certiflcateholders." Section 3.26(a) of the PSA further
provides that "[u]pon determining that any Mortgage Loan has become a Specially Serviced
Loan, the Servicer... shall use its best efforts to provide the Special Servicer with all
information, documents . . . and records . . . relating to the Mortgage Loan and reasonably
requested by the Special Sevicer to enable it to comply with its duties .... "Thus, Nomura and
ASC are contractually obligated to hold and/or deliver to the Trustee not only the Mortgage
Files, but also the origination and underwriting files and documents relating to the Mortgage
Loans.
26. Under and pursuant to Section 2.03(e) of the PSA, OCM, as Special Servicer, for
itself and for the Trustee's benefit, made written demands on Nomura and ASC in May and July
2003 to deliver to the Servicer for delivery to OCM, all loan origination documentation generated
by or at the request or for the benefit of ASC, Nomura, or their respective correspondent loan
originators (if any), existing on or at any time before October 24, 1997 and relating in any way to
the loans in Special Servicing. OCM further demanded that ASC and Nomura provide to the
Servicer and OCM evidence of compliance with their obligations in Paragraph 1 of the MLPSA
with respect to all other loans (i.e., those loans not yet in Special Servicing).
27. Notwithstanding their contractual obligations and the demand letter, Nomura and
ASC refused to provide the requested documents.
PLAINTIFFS' COMPLAINT - Page 13
F. Failure to Cure or Repurchase
28. The above described breaches materially and adversely affect the value of some
or all of the Mortgage Loans and/or the interests of the holders of the Certificates therein.
Based upon the information and documents currently available to LaSalle and OCM, the facts
developed to date, and the breaches identified above, Plaintiff believes and alleges that Nomura
and ASC breached their respective representations and warranties with respect to some or all of
the Mortgage Loans.
29. By letter dated July 24, 2003, OCM, as Special Servicer, gave written notice to
Nomura and ASC pursuant to Section 3(a) of the MLPSA and Section 2.03(d) of the PSA
identifying numerous breaches of representations and warranties (the "Notice Letter"). Pursuant
to MLPSA Section 3(b), Special Servicer OCM made demand on Nomura and ASC either to
repurchase the Mortgage Loans or cure all breaches within ninety days of the Notice Letter in
accordance with the terms of the MLPSA and the PSA. Despite such notice and demand under
the MLPSA and the PSA, Nomura and ASC failed and refused to cure the breaches or
repurchase the Mortgage Loans.
30. All conditions precedent to this action, if any, have been performed by Plaintiff or
waived by Defendants.
IV. CAUSES OF ACTION
COUNT I
Nomura's Breaches of Representations and Warranties
31. Plaintiff repeats and realleges each and every fact and allegation contained
above as if set forth herein.
32. Nomura represented and warranted many aspects of the Mortgage Loans and
the underwriting process, including that the origination, servicing and collection of the Mortgage
PLAINTIFFS' COMPLAINT - Page 14
Loans were proper and prudent in accordance with customary industry standards. As detailed
above, Nomura breached its representations and warranties in the MLPSA.
33, Nomure's breaches of its representations and warranties resulted in damages to
the Trust and Certificateholders in the amount of the Repurchase Prices for the Mortgage Loans
plus legal fees, expenses and additional amounts continuing to accrue in accordance with the
PSA.
34. Nomure's failure and refusal to repurchase the Mortgage Loans within ninety
days of the Notice Letter is a further breach of its obligations under the MLPSA. Resulting
damages to the Trust and Certificataholders include the Repurchase Prices for the Mortgage
Loans plus legal fees, expenses and additional amounts continuing to accrue in accordance
with the PSA.
35. New York law, which applies to each of the MLPSA, and the PSA, recognizes a
covenant of good faith and fair dealing in the course of contract performance. Pursuant to this
covenant, Nomura pledged that it would not do anything that would have the effect of injuring
the rights of the Trustee and Certificateholders. Nomura breached the covenant of good faith
and fair dealing by engaging in the wrongful acts described above. By reason of the wrongful
acts described above, and as a proximate cause thereof, the Trust has been damaged in the
amount of the Repurchase Prices for the Mortgage Loans and/or the losses on the Mortgage
Loans that should not have been conveyed to the Trust, expenses incurred in servicing the
Mortgage Loans and in searching for the origination and underwriting documents including all
attorney fees and interest allowed by law, and other losses and damages that may be proved at
trial.
PLAINTIFFS' COMPLAINT- Page 15
COUNT II
Nomura's and ASC's Breach of Their Obligations in the MLPSA and the PSA Regarding
Their Obligations to Create, Maintain and Deliver Complete Origination Documents
36. Plaintiff repeats and realleges each and every fact and allegation contained
above as if set forth herein.
37. Nomura and ASC represented, warranted and contractually agreed that they
would create, maintain and/or deliver to the Trustee complete Mortgage Files and all other
origination and underwriting documents or files that relate to the Mortgage Loans.
38. As detailed above, Nomura and ASC breached their representations, warranties
and contractual obligations, as well as their covenants of good faith and fair dealing.
39. Defendants' breaches resulted in damages to the Trust and Certificateholdera for
which Plaintiff hereby seeks recovery.
COUNT III
ASC's Breach of Representations and Wan'antles Regarding the Truth of Nomura's
Representations and Warranties
40. Plaintiff repeats and realleges each and every fact and allegation contained
above as if set forth herein.
41, In the PSA, ASC confirmed the truth and accuracy of every one of Nomura's
representations and warranties, including those summarized above,
42. ASC breached its representations and warranties as described herein as well as
its covenant of good faith and fair dealing.
43. ASC's failure and refusal to repurchase the Mortgage Loans within ninety days of
the Notice Letter is a further breach of its obligations under the PSA.
44. Plaintiff seeks damages equal to the Repurchase Prices of the Mortgage Loans
as calculated in accordance with the PSA, plus legal fees, expenses and additional amounts
continuing to accrue in accordance with the PSA.
PLAINTIFFS' COMPLAINT- Page t6
V. PRAYER
WHEREFORE, Plaintiff prays that judgment be awarded in its favor and against
Defendants as follows:
(a) Judgment on the Trustee's claims for breach of contractual obligations,
representations and warranties, including an award of damages;
(b) Judgment on the Trustee's claims for breach of the covenant of good faith and
fair dealing, including an award of damages;
(c) To the extent permitted by law, the PSA and/or the MLPSA, the Trustee's
reasonable attorneys' fees, costs and disbursements of this action; and
(d) Such other and further relief as the Court may deem just and proper.
Dated: October 23, 2003
PLAINTIFFS' COMPLAINT- Page 17
Respectfully submitted,
MUNSCH HARDT KOPF & HARR, P~C.
David C. Mattka
Phil C. Appenzeller, Jr.
Raymond J. Urbanik
1445 Ross Avenue
4000 Fountain Place
Dallas, Texas 75201
Telephone: (214) 855-7500
Facsimile: (214) 855-7584
ATTORNEYS FOR PLAINTIFF
Raymond J. Urbanik
A Member of the New York Bar
PLAINTIFFS' COMPLAINT ~ Page 18
DALLAS 894422_1 6167~29
Exhibit B
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LASALLE BANK NATIONAL ASSOCIATION
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTI~ICATES SERIES 1997-D5,
Plaintiff,
- against -
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
Part 56 (Hon. Richard B. Lowe IIo . .:
ORDER GRANTING
OPEN COMMISSIONS
.................................................................
Plaintiff'having moved this Court for an Order pursuani'~'~P.,t~ 108
directing the issuance of Open Commissions herein for the obtaining of documents from
and taking of testimony of the persons set forth below;
NOW, upon reading and filing plaintiff's Notice of Motion, dated
February 25, 2004, and the affidavit of Robert J. Lack, sworn to on February 25, 2004,
together with the exhibits thereto, and upon due consideration, it is
ORDERED that plaintiff's motion for the issuance of Open Commissions
is GRANTED; and it is further
ORDERED, that Open Commissions, in the forms attached hereto as
Exhibits A to K, be, and hereby are, issued out of this Court to the appropriate authorities
I
332761.2
in the following states, to issue subpoenas and subpoenas duces tecum to the following
persons:
· Buffalo Investors -- Milwaukee, Wisconsin
Square I-1, LLC -- Milwaukee, Wisconsin
Paso Builder Company, L.C. 1997-1 -- Dallas, Texas
San Builder Company, L.C. 1997-1 -- Dallas, Texas
Cobblestone, LLC -- Columbia, South Carolina
Sandy Hill Estates Partnership -- ~'am~ ~il~, P[~ansylvania
Banzhoff, Banzhoff& Sellers -- Camp Hill, Pennsylvania
Banzhoff & Banzhoff-- Camp Hill, Pennsylvania
San Jacinto Choice Group, Ltd. -- Crosby, Texast
Tennessee Hospitality Limited Partnership -- Jackson, Tennessee
Moonlight Hospitality, Inc. -- Bridgeville, Pennsylvania
Ten to the Sixth, Inc. -- Tucson, Arizona
Fahmi Yousif-- West Bloomfield, Michigan a~&
160'4 4
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LASALLE BANK NATIONAL ASSOCIATION
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5,
Plaintiff,
- against -
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
Index No. 603339/03
Part 56 (Hon. Richard B. Lowe III)
COMMISSION
THE PEOPLE OF THE STATE OF NEW YORK
To: THE APPROPRIATE AUTHORITY IN THE STATE OF PENNSYLVANIA
KNOW YE, that we, with full faith in your prudence and competency,
have by this Commission appointed you and by these presents do authorize you or any of
you to issue such subpoenas as necessary to cause representatives of Sandy Hill Estates
Partnership, Banzhoff, Banzfoff & Sellers, and Banzhoff& Banzhoff, all located at 20
Roundhill Road, Camp Hill, PA 10711 (the "Witnesses"), to be examined as witnesses in
an action pending in our Supreme Court, New York County, between LaSalle Bank
National Association (f/k/a LaSalle National Bank), as Trustee for the Certificateholders
of Asset Securitization Corporation Commercial Mortgage Pass-Through Certificates
Series 1997-D5, as plaintiff, and Nomura Asset Capital Corporation and Asset
335732.1
Securitization Corporation, as defendants, under oath, upon oral examination to be
conducted under Article 31 of the Civil Practice Law and Rules and 22 NYCRR
§ 202.15. The Witnesses are within the jurisdiction of your Court, and do or may have
knowledge and documents relevant to the adjudication of the pending civil action
captioned above, and accordingly the issuance of subpoenas duces tecum is requested
fi.om the appropriate Court for service upon the Witnesses.
YOU ARE HEREBY REQUESTED AND COMMISSIONED to issue to
counsel for plaintiff such subpoenas duces tecum from your Court as may be available
and necessary for service upon the Witnesses as deponents in depositions to be convened
by counsel for plaintiff at such place, date, and time as shall be designated upon an
appropriate Notice of Deposition. We, therefore, request of you that, in furtherance of
justice, you will by proper and usual process of your Court, cause the Witnesses to appear
at such place, date, and time, and there to answer, under oath, to the several questions and
cross-questions put to them by the attorneys for the parties hereto, and to produce to
plaintiff's counsel at least seven calendar days before the deposition all documents as
shall be requested upon issuance of appropriate subpoenas duces tecum.
Pursuant to Section 3102(e) of the Civil Practice Law and Rules, "[w]hen
under any mandate, writ or commission issued out of any court of record in any other
state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is
required to take the testimony of a witness in the state, he may be compelled to appear
and testify in the same manner and by the same process as may be employed for the
purpose of taking testimony in actions pending in the state. The supreme court or a
county court shall make any appropriate order in aid of taking such a deposition." In
335732.1 2
accordance with the foregoing statute, we shall be, and stand ready, willing, and able to
do the same for you as we are asking you to do herein, in a similar case when required.
WITNESS, Hon. Richard B. Lowe III, Justice of the Supreme Court of the
State of New York and the seal thereof, at the City of New York, County of New York
this i<' dayof /l~r'6~) ,2004.
335732.1 3
CERTIFICATE OF SERVICE
1, Nicole L. Borda, hereby certify that I am this day serving a copy of the foregoing
document by United States First Class Mail, Postage Prepaid, upon the person indicated below:
Amianna Stovall
Dreier LLP
499 Park Ave.
New York, NY 10022
BUCHANAN INGERSOLL PC
DATE: June 8, 2004
La SALLE BANK, NATIONAL ASSOCIATION,
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Petitioner,
JUN 0 8 2004
: 1N THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 04'-
NOMURA ASSET CAPITAL CORPORATION : (Case No. 603339-03 in the Supreme
and ASSET SECURITIZATION CORPORATION,: Court of the State of New York,
Respondent. : County of New York)
ORDER
AND NOW, this ~ day of ~ ,2004, upon consideration of the Petition
for Issuance of a Subpoena to Give Testimony at a Deposition and a Subpoena to Produce
Documents for Use in a Matter Pending in a Tribunal Outside of this Commonwealth Pursuant to
42 Pa. C.S. § 5326, it is hereby ORDERED that the Petition is GRANTED.
The Prothonotary shall issue a subpoena pursuant to ,Pa. R. Civ. P. 4007.1, directing a ·
~, .l~zhoFF, D:mzho~F ~ e411~m a/id ,q~.rdy Or'Il D,s-fla~ l:hr+ner~hq°
representative of Banzhoff & Banzhoffffo appear and give testimony at a deposition as requested
by Petitioner LaSalle Bank, National Association. The Prothonotary shall further issue a
subpoena pursuant to Pa. R. Civ. P. 4009.21 to compel the production of documents and things
by Banzhoff & Banzhoff as requested by Petitioner La Salle Bank, National Association.
La SALLE BANK, NATIONAL ASSOCIATION,
(f/kJa LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Plaintiff,
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. Z;q- 593 d L/
(Case No. 603339-03 in the Supreme
Court of the State of New York,
County of New York)
1N THE COURT OF COMMON PLEAS
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Plaintiff certifies that:
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached
thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which
the subpoena is sought to be served,
a copy of the notice of intent, including the proposed subpoena, is attached to this
(2)
certificate,
(3)
(4)
no objection to the subpoena has been received, and
the subpoena which will be served is identical to the subpoena which is attached
to the notice of intent to serve the subpoena.
DATE: June 8, 2004
~l~c 6,I.e. ,L. ~orda(~/sq~re
Pa. Att y I.D. # 89214
One Sooth Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 237~4800
Timothy P. Palmer, Esquire
Pa. Att'y I.D. #86165
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attorneys for Petitioner
LaSalle Bank, National Association
2
La SALLE BANK, NATIONAL ASSOCIATION,
(f]k/a LASALLE NATIONAL BANK), a~
Trustee for thc Certificateholde~s of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTOAOE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Plaintiff,
NOMURA ASSET CAPITAL CORPORATION
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
(C~e No. 603~39-03 i~ the Supmm~
and ASSET SECLrRITIZATION CORPORATION,: Court oft-he State of New York,
Defendants. : County of New York)
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
AND THINGS FOR DISCOVERYPURSUANT TO RULE 4009,21
LaSalle Bank, National Association intends to serve a subpoena identical to the one that
is att&ched to this notice. You have twenty (20) clays from the date listed below in which to file
of record and serve upon the lmdersjgned all objection to the subpoena. If no objection is made
the subpoena may b~ served.
BUCHANAN INGERSOLL, PC
Date: May 20,2004
~l~lcole L. Bord~Es/luire
Pa. Att'y I.D. # 89214
One South Market Squ~re
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Teh (717) 2374800
Timothy P. palmer, Esquire
Pa. Att'y LD. #86165
One Oxford Centre
301 C3rant Slreet, 20th Floor
Pittsburgh, PA 15219
Tel: (412) $624800
Attorneys for Petitioner
LaSalle Bank, National Association
La SALLE BANK, NATIONAL ASSOCIATION,
(filda LASALLE NATIONAL BANK), ~s
Trustee for the Certificatcholdcrs of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
PlaintilF,
NOMLrRA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
ll~ THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO,
(Case No. 603339-03 in the Supreme
Court of the State of New York,
County of New York)
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Sandy Hill Estates Partnership
20 Round Hill Road
Camp Hill, PA 17011
Within twenty (20) days alter service of this subpoena, you are ordered by the court to
produce the documents as instructed in Schedule "A" attached hereto at Buchanan Ingersoll, PC
at One South Market Square, 213 Market Street, 3rd Floor, Harrisburg, Pennsylvania.
You may deliver or mail legible copies of the documents or produce things requested by
tiffs subpoena, together with the certificate of compliance, to the party making this request at the
address listed above. You have the right to seek in advance the reasonable cost of preparing the
copies or producing tho things sought.
If you fail to produce the documents or things required by this subpoc-na within twenty
(20) days after its service, the party serving this subpoena may seek a court order compelling you
to comply with it.
Th/s subpoena was issues at the request of thc following person:
Nicol¢ L. Bo~, Esquire
P~ Att'y I.D. # 89214
One South M~rket Squase
213 M~tkct Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 237-4800
T/mothy P. Palm,r, Esquire
Pa. AWy I.D. #86165
One Oxford C~ntm
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attorneys for Petitioner
LaSalle Bank, National As$ocJalion
Dale:
BY THE COURT,
Prothonotary
2
SCHEDULE A
DEFINITIONS AND INSTRUCTIONS
A. "You," "your," or "Borrower" means Sandy Hill Estates Parmership, and
such person's co-borrowers, affiliates, divisions, subsidiaries, corporate parents, partners,
predecessors or successors in interest, officers, directors, administrators, employees,
agents, attorneys, or other representatives.
B. "Property" means the Banzhoff Mobile Home Park portfolio, consisting
of: (i) Sandy Hill Estates, Sandy Hill Road, Valencia, Pennsylvania, 16059; (ii) Shawnee
& Sciota Villages, Corry, Pennsylvania, 16407; (iii) Mahoning Manor, Punxsutawney,
Pennsylvania, 15767; and (iv) Parsons Mobile Home Park, 13945 Doolittle Road,
Wattsburg, Pennsylvania, 16442.
C. "Loan" means the loan made to the Borrower on or about October 3, 1997
with respect to or secured by thc Property.
D. "Sponsor" means a guarantor (whcth~ or not full recourse), sponsor, or
principal of the Loan or Bon-ower.
B. "Lender" means, individually and collectively, thc lender for or originator
of thc Loan (e.g., Nomura Asset Capital Corporation or Bostonia American Lending
C.,roup-l), its affiliates, divisions, subsidiaries, corporate parents, partners, predecessors or
successors in interest, officers, directors, ~tm;n~strators, employees, agents, attorneys, or
other representatives.
F. "ASC" means, individually and collectively, Asset Securitization
Corporation, its affiliates, divisions, subsidiaries, ccrporate parents, partners,
predecessors or successors in interest, officers, directors, adm;nistrators, employees,
agents, attorneys, or other represantatives.
G. "LaSalle" means, individually and collectively, LaSalle Bank National
Association (f/k/a LaSalle National B~nIc), as Trustee for the Certificatcholders of Asset
Securitization Corporation Commercial Mortgage Pass-Through Certificates Series 1997-
D5, each of its affiliates, divisions, subsidiaries, corporate parents, partners, predecessors
or successors in interest, officers, directors, administrators, agents, employees, attorneys,
or other representatives.
H. "Servicer" means all entities that have served as the Master Servicer or
Special Servicer of Asset Securitization Corporation Commercial Mortgage Pass-
Through Certificates Series 1997-D5, including A_MI~SCO Services, L.P., Capmark
Services, L.P., GMAC Coromereial Mortgage Corporation, AMRESCO Management,
Inc., Lend Lease Asset Management, L.P., and ORIX Capital Markets, LLC and their
affiliates, divisions, subsidiaries, corporate parents, partners, predecessors or successors
3~0031.l
in interest, ofllc~rs, directors, administrators, ernploye~s, agents, attorneys, or other
representatives.
I. "Communication" means the tra.nsrni~ of information (in the form of
facts, ideas, inquiries, or otherwise) by any means, including any meeting, conv~-sation,
discussion, conference, correspondence, message, or other written or oral transmission,
exchan§¢, or transfer of information in any form baween two or more persons, including
by telephone, facsimile, telegraph, telex, o-mail, or other medium.
$. "Concerning" means relating to, referring to, describing, connected with,
commrnting on, impinging or impacting upon, affecting, responding to, expla~nln$,
showing, analyzing, reflecting, regarding, discussing, evidencing, summarizing.
comprising, or constituting, directly or indirectly, in whole or in ps. rt.
K. "Document" or "documents" shall have the bw~iest mesnin~ possible
under ~e applicable discow'ry rules inclvdlng, without limitation, any written, typed,
printed, handwritten, recorded or graphic matter of any kind, however produced or
reproduced, and rcglmtless of where located, including, but not limited to, any magnetic
or other recording tape, computer data (including information or programs stored in a
computer, whether or not ever printed out or displayed), c-mail message, photograph,
microfiche, micwfikn, videotape, record or mot/on picture, and electronic, mechanical, or
electrical record or representation of any kind including, without limitation, tape,
cassette, disc, magnetic card or recording. "Document" or "documents" shall also
include the file folders in which said documents arc maintained and any table of contents
or index thereto, and copies of documents of which thc originals have been destroyed
pursuant to a document destruction policy or otherwise.
L. "Person" means any natural person or any firm, partnership,
proprietorship, corporation, joint venture, trust, or any other legal or governmental entity,
group, organization, or ~ssociation.
M. The terms "all" and "each" shall be construed as all and each. The word
"including" shall bc construed to mcan "including, but not limited to." The connectives
"and" and %r" shall be construed either disjunctively or conjunctively as necessary to
bring within the scope of the request all documents that might otherwise be construed to
be outside o£its scope. The word "any" includes each and every.
N. The usc of the singular form of any word includes the plural and vice
versa. Thc masculine includes the f~ninine end n~utcr genders.
O. Each request herein should be construed independently and not with
reference to any other request for thc purposes of limitation.
P. In addition to original and final versions of documents, all ih-aris,
alterations, modifications, cha,~ges, and amendments of documents should be produced,
340031 .I 2
ss well as all copies non-identical to the original in any respect, including any copy
beating non-identical markings or notatiom of any kind.
Q. Documents stored electronically shall'be produced in both printed and
electronic formats.
R. Unless otherwise noted, this request covers documents in your possession,
custody, or control, including documents maintained at your present or former offices, in
the possession of its officers, directors, administrators, employees, agents, attorneys, or
other representat/ves, or elsewhere, dated, created, or in effect during, or concerning, the
period from O~tober 1, 1995 to the date ~11 requested documen~ are produced in
r~ponse to this request.
S. If any responsive document is withheld or redacted on the basis of any
claim ofpr/v/lege or work product, submit a schedule listing such documents and state
for each:
a. the type 0£ document (e.g., memorandum, 1,'tter);
b. the date of the document;
c. the author(s) of the document;
the person(s) to whom the document is addressed, including the recipients
of copies, as indicated on the document;
where not apparent, the relationship of the author(s) and addressees and
recipients to each other;,
f. the general sublet matter of the document; and
g. the basis on which the document is being with_heM.
business:
Ail documents am to be produced as kept in the ordinary course of
U. TMs is a continuing request for production of documents, and if additional
documents are received or discovered after the initial pwduction, all such further
documents should be produced as they are received.
DOCUMENTS TO BE PRODUCED
1. Thc following documents concerning the Loau, Property, Borrower, or
Sponsors (if any):
All applications concerning the Loan by the Borrower, Sponsors, or any
third-party correspondent originator, addressed to the Lender, ASC. or any
L
third-party correspondent originator, whether dlr~cfl¥ or through agents or
representatives or oth~r intgtmediaries;
All commitment letters concerningthe Loan that are addressed to the
Borrower, Sponsors, or any th/rd~party correspondent or/ginator~ from the
Lender, ASC, or any third-party correspondent originator, whether directly
or through agents or representatives or other intermediaries;
Ail communications concerning the Loan, the Prepm~y, the Borrower, or
any Sponsor between or among any of the following: (i) the Borrower;
(ii) any Sponsor;, (iii) any third-party correspondent/originator; (iv) the
L~nder; (v) ASC; (v/) LaSalle; (v/i) any Servicer; or (viii) in the case of a
Borrower that was a franck/see, any franchisor.
All entity orgardzstion documents (such as certificates ofincorporat/on,
bylaws, and partnership or operating agreements) for the Borrower, the
Sponsors, and for all entities holding direct or indirect interests in the
Borrower or any of the Sponsors, and documents sufficient to identify any
independent membem or d/rectors;
All financial statements and trax returns for the Borrower, the Sponsors,
and for all entities holding direct or indirect interests in thc Borrower or
any of the Sponsors;
All documents concerning guaranties and guarantors for non-recourse
¢iLrv¢-outs;
The purchase agreement/'or the Property;
All valuations or appraisals (including the most recent valuation or
appraisal prece~llng the closing of the Loan and ail valuations or appraisals
conducted within the 24-month period preceding the closing of the Loan,
even if the date of such valuations or appraisals is prior to October I,
1995);
All engineering, property condition, gnvirenm~ntal, and inspect/on reports
All leases, subleases, and tenant estoppels and subordination agreements;
Ail franchis~ membership or other franchise-related agreements;
All rent tells, operating statements, and cash flow statements;
All licenses, perm/ts, certificates (includL'tg certificates of occupancy), and
authorizations issued or required by local author/ties;
340031,1
4
So
V.
All lease enlmncement insurance policies;
All advertise~ments, marketing materials, or other publicity;,
All legal opinion letters;
All presentations concerning the Loan;
All memoranda, meeting minutes, resolutions, authorizations, approvals,
consents, and similar documentation concerning the approval, whether
formal or informal, of the Loan;
All documents concerning tho truth or falsity of Borrower or Sponsor
statements, representations, or warranties in connention with the Loan;
All analyses of fina,~¢ial data concerning the Loan, including loan-m-value
ratios ("LTVs") end debt service coverage ratios ("DSCRs");
All loan originadon files and loan underwriting files for the Loan;
All documents concerning fees, co,remissions, end compensation paid to
the Lender or A$C;
All documents concerning any advances made by the Leader;,
All notes, mortgages, and deeds of trust, and assignments of the foregoing;
Any related security agreement that is separate from the mortgage, end
any assignment thereof;
All UCC-I, UCC-2. and UCC-3 finenc/ng statements concerning any
security interest in any personal property constituting security for
rcpawnent of the Loan or in any reserve accounts, cash collateral
accounts, or lock-box avcounts or funds contained therein, or any
assignment of any such security interest;
Any loan agreement relating to the Loan;
The lender's or mortgagee's title insurance policy (or the pro forma title
insurance policy), together with any endorsements thereto;
Any related assignment of leases, rents and px'ofits that is separate from
the mortgage, together with any ~xccuted rcassigmnent of such
instrument;
All management agreements for the Property.
Any related ground lease, as amend~i, for the Propea%,;
Any related assignment of contracts that is separate from the mortgage,
and any assignment thereof;
Any related lock-box agreement or cash collateral agreement that is
separate from the mortgage or loan agreement;
Any and all amendments, modifications and supplements to, and waivers
related to, any of the foregoing;
ii.
Any ci~sh munagemcnt, capital improvements, operations and
maintenance, or other agreements related to the Loan;
All documents concerting payment or nonpayment of the Loan (including
late fees), bankruptcy of the Borrows or any tenant, forcclosur~ of thc
Loan, or sale of thc Property.
2. Documents sufficient to identify the names, rifles, and current home and
business ~Mresses and telephone numb~s of(a) all individuals who participated in any
way in the application for, origination of, or underwfithg of the Loan; and (b) all
individuals who have or had responsibility for the adralni.~tration of your computer
systems and document r~ention policies, including organizat/onal chins, working group
lists, ~nd directories.
3. Your document rctenrion policies, including all internal memoranda,
policy statements, or communications concerning such policies or their impl~mentarion.
4. Documents sufficient to describe your computer networks, including the
loc~ions and types of servers and backup and storage media,/md the systems, policies,
and procedures used to back up e-mall and oth~r electronic files, including the frequency
with wh/ch backups a~. created, the means by wh/ch they are made, the durat/on they are
retained, and the locat/on in which they are stored.
6
La SALLE BANK, NATIONAL ASSOCIATION,
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Plaintiff,
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
(Case No. 603339-03 in the Supreme
Court of the State of New York,
County of New York)
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Plaintiff certifies that:
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached
thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which
the subpoena is sought to be served,
(2)
certificate,
(3)
(4)
a copy of the notice of intent, including the proposed subpoena, is attached to this
no objection to the subpoena has been received, and
the subpoena which will be served is identical to the subpoena which is attached
to the notice of intent to serve the subpoena.
DATE: June 8, 2004
Pa. Att'y I.D. # 89214
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 237-4800
Timothy P. Palmer, Esquire
Pa. Att'y I.D. #86165
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attorneys for Petitioner
LaSalle Bank, National Association
2
La SALLE BANK, NATIONAL ASSOCIA/ION,
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Plaintiff,
NO~ ASSET CAPITAL CORPORATION
lin THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO,
(Case No. 603339-03 in the Supreme
~md ASSET SECURITIZATION CORPORATION,: Court of the State of New York,
Defendants. : County of New York)
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
AND THiNGS FOR DISCOVERY PURSUANT TO RULE 4009.21
LaSalle Bank, National Association intends to serve a subpoena identical to the one that
is attached to tiffs notice. You have twenty (20) days from fiae date listed below in which to file
of record and serve upon the undersigned au objection to the subpoena. If no objection is made
the subpoena may be served.
BUCHANAN INGERSOLL, PC
Date: May 20,2004
Bye_
Pa. Att'y 1.D. # 89214
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 237-4800
Timothy P. Palmar, Esquire
Pa. Att'y I.D. #86165
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attorneys for Petitioner
LaSalle Bank, National Association
La SALLB BANK, NATIONAL ASSOCIATION,
(f/Ida LASALLE NATIONAL BANK), ~
Trustee for the Certifica~ehold~rs of ASSBT
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATF. S SERIES 1997-D5
Plaintiff,
(
NOMUP, A ASSIST CAPITAL CORPORATION
: IN TI-IE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PBNNSYLVANIA
: NO.
: (Ca*e No. 603339-03 in the Supr~ae
and ASSET SECURITIZATION CORPORATION,: Court of the State of New York,
Defendants. : County of New York)
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
~'OR DISCOVERY PURSUANT TO RULE 4009.22
TO: Banzhoff, Ba~zhoff& Sellers
20 Round Hill Road
Camp Hill, PA 17011
Within twenty (20) days aider service of this subpoena, you are ordered by the court to
produce the documents as instrocted in Schedule "A" attached hereto at Buchanan Ingersoll, PC
at One South Market Square, 213 Mtu-ket Street, 3rd Floor, Harrisburg, Pennsylvania.
You may deliver or mail legible copies of the documents or produce things requested by
this subpoena, together with the certificate of compliance, to thc party making this reques! at the
address listed above. You have the right to seek in advanC~ the reasonable eos~ of preparing thc
copies or producing the things sought.
If you fail to produce the documents or things requited by this subpoena within twenty
(20) days after its service, the party serving this subpoena may seek a court order Compelling you
to comply with it.
This subpo~aa was issucs at the request of the following person:
Nico1¢ L. Borda, Esqu/re
Pa. AR'y I.D,# 89214
O~e South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
T~I: (717) 237-4800
Timothy P. Palmc-r, Esquir~
Pa- Att'y I.D. #86165
One Oxford C~ntre
301 Grant Slxe~t, 20th Floor
Pi~burgh, PA 15219
Tel: (~.12) 562-8800
Attorneys for Petitioner
LaSalle Bank, National Association
Date:
BY THE COURT,
Prothonotary
2
DEFINITIONS AND INSTRUCTIONS
A. "You," "your," or "Borrower" means Bzn~hoif, Ba.~hoff& Sellers, and
such person's co-borrowers, affiliates, divisions, subsidiaries, corporate parenta, partners,
predecessors or successors in inter.t, officers, directors, ad~i.lstrators, employees,
agents, attorneys, or other representatives.
B. "Property" means thc Banzhoff Mobile Home Park pon/olio, consisting
of: (i) Sandy Hill Estates, Sandy Hill Road, Val~cia. P~nsylYania, 16059; (ii) Shawnee
& Sciota Villages. Con-y. Pannzylvfmia, 16407; (iii) Mahoning Manor. Punxsutawney,
Pennsylvania, 15767; and (iv) Parsons Mobile Home Park, 13945 Doolittle Road,
Wattsburg, Pennsylvania, 16442.
C. "Loan" means the loan made to the Borrower on or about October 3, 1997
with respect to or secured by the Property.
D. "Sponsor" means a guarantor (whirr or not full recourse), sponsor, or
principal of the Loan or Borrower.
E. "Lender" means, individually and collectively, the lender for or ori~aor
of the Loan (e.g., Nomura Asset Capital Corporation or Bostonia American landing
Group-I), i~s affiliates, divisions, subsidiaries, corporate parents, partners, predecessors or
successors in int~est, officers, directors, a~ml.istrators, ~mployees, agents, attorneys, or
other represm~tatlves.
F. "A$C" means, individually and collectively, Asset Securi6~ntion
Corporation, its affiliates, divisions, subsidiaries, corporate parents, parmers,
predecessors or successors in inter~st, officers, directors, administrators, employees,
agents, attorneys, or other representatives.
G. "LaSalle" means, individually and collectively, LaSalle Bank National
Association (f/Ida LaSalle National Bank), as Trustee for the Certificatcholders of Ass~
Securitization Corporation Commcxcial Mortgage Pass-Through Certificates Series 199%
D5, each of its affiliates, divisions, subsidiaries, corporate parents, partners, predecessors
or successors in interest, officers, directors, administrators, agents, employees, attorn~3~s,
or other re'presentadves.
H. "Servicer" means all entities that have serve~l as the Master Servicer or
Special Servicer of Asset Securitization Corporation Commercial Mortgage Pass-
Through Certificates Series 1997-D5, including A_MRE~CO Services, L.P., Capmark
Services, L.P., GMAC Commemial Mortgage Corporation, AMP,.ESCO Managv-ment,
Inc., Lend Lease Asset Management, L.P., and OR.IX Capital Markets, LLC and their
affiliates, divisions, subsidiaries, corporate parents, partners, predecessors or successor~
340034,1
in interest, officcm, directors, a~m{aistmtors, ernployees, agents, attorneys, or other
representatives.
I. "Communication" means the transmittal of information (in the form of
facts, ideas, inquiries, or othenvise) by any means, including any meeting, conversation,
discussion, confemw, e, correspondence, message, or other written or oral transmission,
exchange, or ~',,~fcr of information in any form between two or more persons, including
by tel~hone, facsimile, telegraph, telex, e-mail, or other medium.
J. "Concerning" means relating to, referring to, describing, connected with,
commenting on, impinging or impacting upon. affecting, responding to, explni,~irig,
showing, analyzing, reflecting, regarding, discussing, evidencing, summarizing,
comprising, or constituting, directly or indirectly, in whole or in pan.
K. "Document" or "documents" shall have the broadest meaning possible
under the applicable discovery roles including, without limitation, any written, typed,
printed, handwritten, recorded or graphic matter of any kind, however produced or
reproduced, and regardless of where located, including, but not limited to, any magnetic
or other recording tape, computer dali (including information or programs stored in a
computer, whether or not ever printed out or displayed), e-mail messa§e, photograph,
microfiche, microfilm, videotape, record or motion picture, and electronic, mechanical, or
electrical record or repres~tation of any kind including, without limitation, tape,
cassette, disc, magnetic card or recorcling. "Document' or "documents" shall also
include thc file folders in which said documents are maintained and any table of corrtents
or index them{o, and copies of docurnants o£which the originals have been destroyed
pursuant to a document destruction policy or otherwise.
L. "Person" means any natural person or any finn, partnership,
proprietorship, corporation, joint venture, trust, or any other legal or govermnental entity,
group, or~mization, or association.
M. The terms "all" and "each" shall be construed as all and each. The word
"including" shall be consimed to mean "including, bu: not llmltcd to.' The connectives
"and" and "or" shall be construed either disjunctively or conjunctively as necessary to
bring within the scope of the request all documents thai might otherwise be construed to
be outside of its scope. The word "any" includes each and evcry.
N. Thc usc of thc singular form of any word includes the plural and vice
versa. The masculine includes the feminine and neuter ge~lers.
O. Each request herein should be constm~ independently and not with
reference to any other request for the purposes of limitation.
P. In addition to original and final versions of documents, all drafts,
alterations, modifications, changes, and amendments of documents should be produced,
as well as ~11 copies non-identical to the original in any respocx, including any copy
bearing non-identical merking~ or notations of any kind.
Q, Documents stored electronically shall be produced in both printed and
electronic £onnats.
R. Unless otherwise noted, this r~u~-'t covers documents in your possession,
custody, or control, including documents maintained at your present or former offices, in
the possession of its officers, dh'ectors, administrators, ernployees, agents, attorneys, or
other representatives, or elsewhere, dated, cr~tted, or in effect during, or conc~ning, the
period fxom October 1, 1995 to the date all r~luested documents are produced in
responae to this request.
S. If any responsive document is w/thheld or redacted on the basis of any
claim o£privilege or work product, submit a schedule listing such documents and state
for each:
the type of document (~.g., memorandum, lfftter);
b. the date of the document;
c. the author(s) of the document;
the p~son(s) to whom the document is addressed, including the recipients
o£copies, as indicated on the document;
where not appar~t, the relationship of the authox(s) and addressees and
recipients to each other;
f. (he general subject matter of the document; and
g. the basis on which the document is bein§ withheld.
business.
All documents are to be produced as kept in the or~nm'y course of
U. Th/s is a continuing request for production of documents, and if additional
documents are received or discovered after the initial production, all such further
documents should be prodtmed as they are received.
DOCUMENTS TO BE PRODUCED
1. The following documents concerning thc Loan, Property, Borrower, or
Sponsors (if any):
All applicatiom concerning the Loan by thc Borrower, Sponsors, or any
third-party correspondent originator, addr~sed to the Londer, ASC, or any
third-party cormspond~t originator, whether directly or through agents or
representatives or other intermediaries;
All commitment letters concerning the Loan that are addressed to the
Borrower, Sponsors. or any third-pan~ correspondent originator, from thc
Lend.r, ASC, or any third-pan'y correspondent originator, whether directly
or through agents or representatives or other int~'rnediaxics;
All cornmun/cations concerning the Loan, thc Pwl~'ty, thc Borrower. or
any Sponsor between or amonE any of the following: (i) the Borrower;.
(ii) any Sponsor;. (iii) any third-party corr~spondont/originator; (iv) the
Lender; (v) A~C; (vi) LaSalle; (vii) any Servicer; or (viii) in thc case of a
Borcower that was a fr~cMs~, any ffanchisor.
All catity orgz-;zation documents (such as certificates of incorporation,
bylaws, and parmership or operating agreements) for the Borrower, the
Sponsors, and for all entities holding direct or indirect interests in the
Borrower or any eft/ac Sponsors. and documents sufficient to identify any
independent mcrnb~rs or directors;
Ail financial statements and tax returns for thc Borrower, thc Sponsors,
and for all entities holding direct or indirect interests in the Borrower or
any ofthe Sponsors;
All document~ concerning guaranties and ~uarantors for non-recoursc
carve-outs;
Th~ purchase agreement for the Property;
Ali valuations or appraisals (including the most recent valuation or
appraisal preceding thc closing of the Loan and all valuations or appraisals
conducted within the 2~month period preceding the closing of the Loan,
even if the date of such valuations or appraisals is prior to October 1,
1995);
All engineering, property condition, environmental, and inspection reports
and surveys;
All lease~, subleases, and te~mnt estoppels and subordination agresmcnts;
All f~anckise membership or other franchise-related agreements;
All rent tells, operating statcmcnts, and cash flow statcmcnts;
All licenses, permits, certificates (including certificates of occupancy), and
authorizations issued or required by local anthoriti~s;
Ti.
dd.
All lease edaa~cement/nsurance policies;
All adve~/se~flents, marketing ~t~Es, or o~ pubHci~
All ]e~l opinion I~;
~l pres~o~ ~onc~ing ~e ~;
~ts, ~d s~l~ doc~fion conc~in~ ~e ~p~v~,
fo~ or ~o~, of~e ~
~I do~m~ ~nce~ ~c ~ or f~si~ of Bo~ow~ or Sponsor
stat~, ~ta~o~, or w~fi~ ~ ~ti~ ~ ~e ~;
Ail ~al~es of ~ci~ ~m ~nc~g ~e ~ ~cl~g lo~-W-v~ue
milos ("L~s") ~d debt s~ coverage ra~os ("D5C~'9;
~I lo~ ~ns~ files sna lo~ ~d~E files for ~e ~;
~ docm~ ~g f~s, ~mmissiom, ~d compc~gon p~d to
· c ~d~ ~ ASC;
~I doc~ conccmlng ~y ~c~ m~c by ~e ~nd~
All notes, mo~ges, ~ d~s of~ ~d ~si~men~ of~c lo.gong;
~y ~lat~ s~ a~t ~t is ~te ~m ~e moP. ge, ~d
~l UCC-I, UCC2, ~ UCC-~ ~c~g smtem~ ~n~ing ~y
s~ ~t~st ~ ~y pe~n~ ~p~y ~g s~W for
~a~t of~e ~m or ~ my r~e ~o~ts, e~h ~ate~l
a~ts, or lock-Mx ~co~ or ~ cont~n~ ~wdn, ~ ~y
~si~t of ~y ~h s~ty ~t~t;
~y lorn a~e~t relafin8 m ~e ~;
~e l~d~'~ or mon~gee's title ~ur~ee policy (or ~e pro roma title
ins~ee ~fiey), togc~ ~ my cn~m~ ~o;
~y rela~ ~si~t ofle~cs, r~h ~d pmfi~ ~at is s~e ~m
· e mon~ge, tog~ wi~ my ex~t~ r~si~t of~ch
ins~t;
All m~agem~t a~e~ents for ~e Prop~;
e~. A.ny related ~-ound Icasc, as amended, for the Property;
Any related assi~ment of contracts that is separate from the mortgage,
and any assignment thereof;
Any relat~l lock-box agreement or cash collateral agre~m~t that is
s~parate fi'om the mot'tgag~ or loan agreement;
Any and all amendments, modifications and supplements to, and waivers
related to, any of the foregoing;
ii.
Any cash mauagemmt, capital improvements, operations sad
maintenance, or other agreements related to the Loan;
All documents concerning payment or nonpayment of the Loan (including
late fees), bmflcraptcy of the Borrower or any tenant, foreclosure of the
Loan. or sale of the Property.
2. Documents s~icient to identify the names, titles, and current home and
business addresses and telephone numbers of(a) all individuals who participated in any
way in the application for, ori/ination o£ or under~iting of the Loan; and (b) all
individuals who have or had responsibility for the administration of your computer
systems and document retention policies, includin~ organizational charts, working ~roup
lists, and directories.
Your document ~ntion policies, includin~ all internal ma'aoranda.
policy statcments, or ¢omm~lllicatiOll~ conC~"~ing such policies or their implementalion.
4. Documents sufficient to d~scribe your computer networks, including the
locations and types of servers and backup and storage media, and the systems, policies,
end procedures used to back up e-mail and other electronic files, inclvdlng the frequency
with which backups are created, the me~n~ by which they are made, the duration they are
retained, and the location in which they are stored.
La SALLE BANK, NATIONAL ASSOCIATION,
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSET
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Plaintiff,
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
(Case No. 603339-03 in the Supreme
Court of the State of New York,
County of New York)
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Plaintiff certifies that:
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached
thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which
the subpoena is sought to be served,
a copy of the notice of intent, including the proposed subpoena, is attached to this
(2)
certificate,
(3)
(4)
no objection to the subpoena has been received, and
the subpoena which will be served is identical to the subpoena which is attached
to the notice of intent to serve the subpoena.
DATE: June 8, 2004
Nicole L. Borda(/Egquire
Pa. Att'y I.D. # 89214
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 237-4800
Timothy P. Palmer, Esquire
Pa. Att'y I.D. #86165
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attomeys for Petitioner
LaSalle Bank, National Association
2
La SALLE BANK, NATIONAL ASSOCIATION,
(f/Ida LASALLE NATIONAL BANK), ~s
Trustee for the Certificatcholdcrs of ASSET
SECURITIZATION CORPORATION
COI~flvlERCIAL MORTGAGE PASS~
THROUOH CERTIFICATES SERIES 1997.D5
NOMURA ASSET CAPITAL CORPORATION
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
(Caze No. 603339-03 inthe Supreme
and ASSET SECURITIZATION CORPORATION,: Court of the State of New York,
Defendants. : County of New York)
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
.aND TNINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
LaSalle Bank, National Association intends to serve a subpoena identical to the one that
is attached to this notice. You have twenty (20) days from the date listed below in which to
of record and serve upon the undersigned an objection to the subpoena. If no objection is made
the subpoena may be served.
BUCHANAN 1NOERSOLL, PC
Date: May ~0,2004
Ntcole L. Bolflt, fls4uire
Pa. Att'y I.D. # 89214
One South Market Square
213 Market S~rec% 3rd Floor
Harrisburg, PA 17110
Tel: (717) 2374800
Timothy P. Ps!ruer, Esquire
Pa. AWy I.D. #86165
One Oxford Centre
301 Grant Slxeet. 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562-8800
Attorneys for Petitioner
LaSalle Bank, National Association
La SALLE BANK, NATIONAL ASSOCIATION,
(f/k/a LASALLE NATIONAL BANK), as
Trustee for the Certificateholders of ASSI~T
SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 1997-D5
Plaintiff,
V.
NOMURA ASSET CAPITAL CORPORATION
and ASSET SECURITIZATION CORPORATION,
Defendants.
IN TIIE COURT OF COIvIMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO.
(Case No. 603339-03 in the Supr¢me
Court of the State of New York,
County of New York)
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOV"ERY PURSUANT TO RULE 4009.22
TO: Banzhoff & Banzhoff
20 Round Hill Road
Camp Hill, PA 17011
Within twenty (20) days after service of this subpoena, you are ordered by the court to
produce the documents as instructed in Schedule "A" attached hereto at Buchanan Ingersoll, PC
at One South Market Square, 213 Market Street, 3rd Floor, Harrisburg, Pennsylvania.
You may deliver or mail leg~'ble copies of the documents or produce things requested by
this subpoena, togvther with the certificate of compliance, to the patty making this request at the
address listed above. You have the fight to seek in advance thc reasonable cost of preparing the
copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty
(20) days after its service, the party serving this subpoena may seek a court order compelling you
to comply with it.
This subpoena was issues at the r~quest of the following person:
Nicole L. Bord~, Esquire
P~. Att'y I.D. # 89214
On8 South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17110
Tel: (717) 23%4800
Timothy P. palm~, E~qui~
Pa. Att'y I.D. #86165
One Oxfozd C~ntre
301 Grant .q~,'e.~, 20th Floor
Pittsburgh, PA 15219
Tel: (412) 562~8800
Attorneys for Pctitiong
LaSalle Bank, National Association
Date:
BY TI-IE COURT,
Prothonotary
SCHEDULE A
DEFINITIONS_ AND INSTRUCTIONS
A. "You," "your," or "Borrower" means Banzhoff& Banzhoff, and such
person's co~borrowers, affiliates, divisions, subsidiaries, corporate parents, panners,
predecessors or successors in interest, officers, clirectors, administrators, vmployeas,
agents, attorneys, or other repmseattatives.
B. "Property" means the BanzhoffMobile Home Park portfolio, consi~ng
of: (i) Sandy Hill Estates, Sendy Hill Road, Valencia, Pmmsylvania, 16059; (ii) Shawnee
& Sciota Villages, Corry, Pennsylvania, 16,~07; (iii) Mahonl-g Manor, Punxsutawncy,
Pennsylvania, 15767; and (iv) Parsons Mobile Home park, 139,i5 Doolittle Road,
Wattsburg, Pennsylvania, 16442.
C, "Loan" means the loan made to the Borrower on or about Octob~r 3,1997
with respect to or secured by the Property.
D. "Sponsor" means a guarantor (whether or not full recourse), sponsor, or
principal of the Loan or Borrower.
1~. "Lender" means, individually and collectively, the lender for or originator
of the Loan (e.g., Nomura Asset Capital Corporation or Bostonia American Lending
Group-I), its affiliates, divisions, subsidiaries, corporate parents, parmers, predecessors or
suc~ssors in interest, offic~xz, directors, administrators, ~mploye~, agents, attorneys, or
other mpresen(atives.
F. "ASC" means, individually and vollectively, Asset Securitization
Corporation, its affiliatc~, divisions, subsidiaries, corporate parents, paxmers,
predecessors or successom in interest, officers, directors, a~mi,~istrators, employees,
agents, attorneys, or other representatives.
G. "LaSalle" means, individually and collectively, LaSalle Bank National
Associat/on (f/Ida LaSalle National Bank), as Tmste~ for the C~ificatcholders of Asset
Securitization Corporation Commercial Mortgage Pass-Through Certificates Series 1997-
D5, each of its affiliates, divisions, subsidiaries, corporate parents, partners, predecessors
or successors in interest, officers, directors, administrators, agents, employees, attomcy~,
or other representatives.
H. "$~rvicer" means all eatities that have served as the Master Servicer or
Special Servicer o£Asset $esuritizal~on Corporation Commercial Mortgage Pass-
Through Cert/ficates Series 1997-D5, including A_M]~$CO Services, L.P., Capmark
Services, L.P., GMAC Comrncmial Morlgag~ Corporation, AMI~SCO Managernent,
Inc., Lend Lease Asset Management, L.P., and ORIX Capital Markets, LLC and their
affiliates, divisions, subsidiaries, corporate parents, partners, predecessors or successors
3~0035.1
in interest, officers, directors, administrators, employees, agents, attorneys, or other
representatives.
I. "Commun/cafion" means thc transmittal of/nformation (in the form of
facts, ideas, inquiries, or otharwise) by any means, including any meeting, conversation,
discussion, conference, correspondence, message, or other written or oral transmission.
exchange, or tramfer of information in any form between two or more persons, includ/ng
by telephone, facsimile, telegraph, telex, ~-mail, or Other medium.
"Concerning" means relating to, referring to, describing, connected with,
commenting on, impinging or impacting upon, affecting, responding to, explaining,
showing, analyz/ng, reflecting, regarding, diacussing, evidencing, summarizing,
eompming, or constituting, diracfly or indimotly, in whole or in part.
K. "Document" or "documents" shall bare the broadest meaning poss~le
under thc applicable discovery rules including, without limitation, any written, typed,
printed, handwritten, recorded or graphic mailer of may k/rid, however produced or
reproduced, and regardless of where located, including, but not limited to, any magn~c
or other recording tape, computer data (including information or prognmas stored in a
computer, whether or not ever printed out or displayed), e-mail message, photograph,
microfiche, microfilm, videotape, record or motion picture, and alectronic, mechanical, or
electrical record or representation of any kind includ/ng, w/thom limitation, tape,
cassette, disc, magnetic card or recording. '~Document" or"documents" shall also
include the file folders in which said documents are maintained and any table of cnntents
or index thereto, and cop/es of documents o£which the ori~n~la have been destroyed
pursuant to a documant destruction policy or othcrw/se.
L. "Person" means any n~tural person or any firm, partnership,
proprietorship, corporation, joint venture, trust, or any other legal or governmental entily,
group, organization, or association.
M. The t~rms "ail" and "each" shall be construed as all and each. The word
"includ/ng" shall be construed to mean "including, but not limited to." The connectives
"and" and "or" ~ be construed either disjunctively or conjunctively as necessary to
bring within thc scope of the request all document~ that might otherwise be construed to
be outside of its ~pe. The word "any" includes each and every.
N. The use of the singular form of any word includes thc plural and vice
versa. The masculine includes the feavlnlne and neuter genders.
O. Each request herein should be construed independently and not with
reference to any other request for thc purposes of limitation.
p. In addition to original and final versions of documents, all drafts,
alterations, modifications, changes, and m-nendment~ of documents should be produced.
as well as all copies non-identical to the original in any respect, including any copy
b~aring non-identical marking~ or notations of any kind.
Q. Documents stored electronically shall be produced in both prh~ted and
electronic formats.
R. Unless otborw/se not~, this request covers documents in your possession,
custody, or control,/ncluding documents v~i.tained at your present or former ofl:/ccs, in
the possession of its officers, d/rectors, administrators, employees, agents, attorneys, or
other representatives, or elsawhere, dated, cre.~t~t, or in effe~'t during, or concerning, thc
period from October 1, 1995 to the date all requested documents are produced in
response to this request.
S. ff any responsive document is withheld or redu~ed on the basis of any
chim of privilege or work product, submit a schedule listing such docurnm~ts and state
for each:
a. the type of document (e.g., memorandum, letter);
b. the date of the document;
c. the author(s) of the document;
the per,on(s) to whom the document is addressed, including the recipients
of copies, as indicated on the document;
where not apparent, the relationship of the author(s) and addressees and
recipients to each other;
£. the general subject maq,.er of the document; and
g. the basis on which the dooument is being withheld.
business.
All documents are to bo producexi az kept in the ordinary cern'se of
U. This is a continuing r~quest for production of documents, and if additional
documents are received or discovered after the initial production, all such further
documents should be produced as they are received.
DOCUMENTS TO BE PRODUCED
1. The following doeurn~ts concarn~ng the Loan, Property, Borrower. or
Sponsors (if any):
All applications concerning the Loan by thc Bomower, Sponsors, or any
third-party correspondent originator, addressed to the Lender, ASC, or any
do
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third-party correspondent originator, whether directly or through agents or
rcpresent~tiv~ or other intouiedieries;
All commitment letters concerning the Loan.that are addressed to the
Borrower, Sponsors, or any third-party correspondent originator, fi-om the
Lender, ASC, or any third.party correspondent originator, whether directly
or through agents or representatives or other intermediaries;
All communications concerning the Loan, the Property, the Borrower, or
any Sponsor between or among any of the following: (i) the Borrower,
(ii) any Sponsor; (iii) any third-party correspondent/originator; (iv) the
Lender; (v) ASC; (vi) LaSalle; (via') any Servicer; or (viii) in the case ora
Borrower that was a franchisee, any franchisor.
Ail entity organization documents (such as cert/ficate, s of incorporation,
bylaws, and partnership or operating agreements) for the Borrower, the
Sponsors, and for all entSfie~ holdir~ dimt or indirect interests in thc
Borrower or any of the Spon~om, and documents sufficient to identify any
independent meanbers or direclors;
All financial statements and tax return~ for the Borrower, tho Sponsors,
and for all entities holding direct or indirect interests in the Borrower or
any of the Sponsors;
All documents concerning guarantys and guarantors for non.recourse
carve-outs;
The pumhase agrcament for tho Prol~$~y;
All valuations or ~ppraislds (including the most recent valuation or
appraisal pr,ceiling the closing of the Loan and all valuations or appraisals
conducted wlth/n the 2&-month period pmco:ling the closing of the Loan,
even if thc date of such valuations or appraisals is prior to October 1,
1995);
All engineering, property condition, environmenlal, and inspection reports
and surveys;
All leases, subleases, and tenant estoppels and suborcl~natJon agreements;
All f~anchise membership or other franchise-related agreements;
All rent rolls, operating statements, and cash flow statements;
All licenses, pennits, certificates (including certificates of occupancy), and
authorizations issued or reqtfired by local authorities;
aa.
cc.
del.
All lease anhancomcnt insurance policies;
All advertisements, marketing materials, or other publicity;
All legal opinion letters;
Ail presentations concerning thc Loan;
All memoranda, meeting m~n~tcs, resolutions, authorizations, approvals,
consents, and similar documentalion conc~ning thc approval, whether
formai or informal, of the Loan;
All documents concerning the truth or falsity of Borrower or Sponsor
statem~ots, representatior~s, or warranties in connection with thc Loan;
All analyses o£ flnanciai data concerning the Loan, including loan-to-value
ratios ("LTVs") and debt service coverage ratios ("DSCRs");
All loan origination files and loan underwriting files for :he Loan;
All documents concerning fees, commissions, and compensation paid to
thc Lender or ASC;
.All documents coneerning any advances made by tho Lender;
All notes, mortgages, and deeds o£irust, and assignments of the foregoing;
Any r~lated security agreement that is separate from the mortgage, and
any asSi~t~n men!
Ail UCC-I, UCC-2, and UCC-3 financing statements concerning any
security interest in any personal property constituting security for
repayment o£the Loan or in any reserve accounts, cash collateral
accounts, or lock-box accounts or funds contained therein, or any
assi~raent of any such security interest;
Any loen agreement relating to the Loan;
The lender's or mortgagce's 6tie insurance policy (or thc pro forma titic
insurance policy), together with any emdorscments thereto;
Any related assignment of leases, rents and profits that is separate from
the mortgage, together with any executed reassignment of such
instrument;
All management agreements for thc Property;
ea. Any related ground lease, as amended, for the Property;
Any related assi~ment of contracts that ~s s~arate from thc mortgage,
and any assignment thexcof;
Any rclate~d look-box agreement or cash collateral allre~nent that is
separate from the mortgaSe or loan a~e~rnont;
Any and all amendments, modifications and supplements to, and waivers
related to, any of the foregoing;
ii.
Any cash manag~n~nt, capital improvements, operations and
ma/ntenence, or other agreements related to the Loan;
All documents concerning payment or nonpaym~mt of the Loan (including
late fees), bankruptcy of the Borrower or any tenant, foreclosure of the
Loan~ or sale of the Property.
2. Documents sufficient to identify the names, titlc~, and current home and
business addresses and telephone numbers of(a) all individuals who participated in any
way in thc application for, origination of~ or undeamfiting o£the Loan; and (b) all
individuals who have or had responsibility for the administration of your computer
system, s and document retention policies, including organizational charts, working ~'oup
lists, and di~cctorics.
3. Your document retention pol/c/es, includi~;g all internal m~moranda.
policy statements, or communications concerning such pohcies or their implementation.
4. Documents suffic/ent to describe your computer networks, including thc
locations and types ofr, ervers and backup and storage media, and the systems, policies,
and pwecdurcs used to back up e-mall and other electronic filch, including thc fi'~quency
w/th which backups are ~reateA, the means by which they are made, the duration they are
retained, and the location in which they arc stored.
6