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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): November 4, 1999
MERRILL LYNCH MORTGAGE INVESTORS, INC.
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(Exact name of registrant as specified in its governing instruments)
Delaware 333-38073 13-3416059
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
World Financial Center
North Tower
New York, New York 10281
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(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (212) 449-0336
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Item 1, Items 3 through 6, and Items 8 and 9 are not included because they are
not applicable.
Item 2. Acquisition or Disposition of Assets.
On December 22, 1998, a single series of mortgage pass-through
certificates, entitled Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1999-C1 (the "Certificates"), was issued
pursuant to a pooling and servicing agreement (the "Pooling Agreement") attached
hereto as Exhibit 4.1 and dated as of November 1, 1999, among Merrill Lynch
Mortgage Investors, Inc. as depositor (the "Registrant"), ORIX Real Estate
Capital Markets, LLC as master servicer, ORIX Real Estate Capital Markets, LLC
as special servicer, and Norwest Bank Minnesota, National Association as
trustee. The Certificates consist of fifteen classes (each, a "Class") of
Certificates, eight of which Classes are designated as the "Class A-1
Certificates", the "Class A-2 Certificates", the "Class B Certificates", the
"Class C Certificates", the "Class D Certificates", the "Class E Certificates",
the Class F Certificates and the "Class IO Certificates" (collectively, the
"Offered Certificates"); and seven of which Classes are designated as the "Class
G Certificates", the "Class H Certificates", the "Class J Certificates", the
"Class K Certificates" (collectively, the "Private Certificates"), the "Class
R-I Certificates", the "Class R-II Certificates" and the "Class R-III
Certificates". The Certificates evidence in the aggregate the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of
106 multifamily and commercial mortgage loans (the "Mortgage Loans") having an
aggregate principal balance as of November 1, 1999 (the "Cut-Off Date") of
approximately $592,445,159 (the "Cut-Off Date Balance"). Each Mortgage Loan is
secured by a first mortgage lien on a fee simple estate in an income producing
property, with the exception of one Mortgage Loan which is fully secured by a
leasehold estate in income producing real property, and one Mortgage Loan which
is secured by a fee simple estate and a leasehold estate in an income producing
property.
All of the Mortgage Loans were acquired by the Registrant from Merrill
Lynch Mortgage Capital Inc. ("MLMC"), Paine Webber Real Estate Securities Inc.
("PWRES") and ORIX Real Estate Capital Markets, LLC ("ORIX") pursuant to three
Mortgage Loan Purchase Agreements, dated as of November 1, 1999 (the "Purchase
Agreements"), between the Registrant and MLMC, PWRES and ORIX, respectively. The
purchase prices (collectively the "Purchase Price") for the Mortgage Loans under
the Purchase Agreement consisted of a cash amount equal to (i) 100% of the
Cut-Off Date Balance plus (ii) interest accrued on the related Mortgage Loans at
the related Mortgage Rate The Purchase Agreements are attached hereto as Exhibit
99.1, Exhibit 99.2 and Exhibit 99.3, respectively. The source of funds for
payment of the Purchase Price was the proceeds derived from the sale of the
Certificates by the Registrant to Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("MLPF&S") and PaineWebber Incorporated ("PW") pursuant to an
Underwriting Agreement, dated as of October 29, 1999 (the "Underwriting
Agreement"), among the Registrant, MLPF&S and PW (pertaining to the Offered
Certificates) and a Certificate Purchase Agreement, dated as of November 4,
1999, among the Registrant, MLPF&S and PW (pertaining to the Private
Certificates). The Underwriting Agreement is attached hereto as Exhibit 1.1. The
Registrant is a wholly-owned limited purpose finance subsidiary of MLMC. On
November 4, 1999, the Registrant transferred the Mortgage Loans to the Trust
Fund pursuant to the Pooling Agreement. The consideration received by the
Registrant in exchange for such transfer consisted of the Certificates.
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The Certificates have the following initial Certificate Balances and initial
Pass-Through Rates:
Initial
Initial Certificate Pass-Through
Class Balance Rate
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A-1.................................... $ 97,600,000 7.37%
A-2.................................... $ 337,847,000 7.56%
B...................................... $ 32,584,000 7.71%(1)
C...................................... $ 26,660,000 7.85%(1)
D...................................... $ 8,887,000 7.85%(1)
E...................................... $ 20,735,000 7.85%(1)
F...................................... $ 7,406,000 7.85%(1)
IO..................................... (2) (2)
H...................................... $ 23,698,000 6.71%(1)
J...................................... $ 2,963,000 7.21%(1)
K...................................... $ 13,330,159 7.21%(1)
R-I.................................... N/A(3) N/A(3)
R-II................................... N/A(3) N/A(3)
R-III.................................. N/A(3) N/A(3)
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(1) The Pass-Through Rates applicable to the Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J and Class K Certificates on each
Distribution Date will equal the lesser of (i) the Weighted Average Net
Mortgage Rate for such Distribution Date and (ii) the indicated fixed rate
per annum for such Class.
(2) The Class IO Certificates will not have a Certificate Balance and their
holders will not receive distributions of principal, but are entitled to
receive payments of the total interest accrued on the national amount of
each of its components.
(3) The Class R-1, Class R-II and Class R-III Certificates have no Certificate
Balance and do not bear interest.
The Offered Certificates and the Mortgage Loans are described in more
detail in the Prospectus, dated October 15, 1999, and the Prospectus Supplement,
dated October 29, 1999, as previously filed with the Securities and Exchange
Commission pursuant to Rule 424(b)(5). Capitalized terms used but not otherwise
defined herein have the meanings set forth in the Prospectus Supplement.
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Item 7. Financial Statements and Exhibits
(a) Financial Statements - Not Applicable
(b) Pro Forma Financial Information - Not Applicable
(c) Exhibits
1.1 Underwriting Agreement, dated as of October 29, 1999, among
Merrill Lynch Mortgage Investors, Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and PaineWebber Incorporated.
4.1 Pooling and Servicing Agreement, dated as of November 1, 1999,
among Merrill Lynch Mortgage Investors, Inc. as depositor,
ORIX Real Estate Capital Markets, LLC as master servicer, ORIX
Real Estate Capital Markets, LLC as special servicer, and
Norwest Bank Minnesota, National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of November 1,
1999, between Merrill Lynch Mortgage Investors, Inc. and
Merrill Lynch Mortgage Capital Inc.
99.2 Mortgage Loan Purchase Agreement, dated as of November 1,
1999, between Merrill Lynch Mortgage Investors, Inc. and Paine
Webber Real Estate Securities, Inc.
99.3 Mortgage Loan Purchase Agreement, dated as of November 1, 1999
between Merrill Lynch Mortgage Investors, Inc. and ORIX Real
Estate Capital Markets, LLC.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MERRILL LYNCH MORTGAGE INVESTORS, INC.
By: /s/ Michael M. McGovern
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Name: Michael M. McGovern
Title: Secretary and Director
Dated: November 19, 1999
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EXHIBIT INDEX
The following exhibits are being filed herewith:
Exhibit No. Description
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1.1 Underwriting Agreement, dated as of October 29, 1999, among
Merrill Lynch Mortgage Investors, Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and PaineWebber Incorporated.
4.1 Pooling and Servicing Agreement, dated as of November 1, 1999,
among Merrill Lynch Mortgage Investors, Inc. as depositor,
ORIX Real Estate Capital Markets, LLC as master servicer, ORIX
Real Estate Capital Markets, LLC as special servicer, and
Norwest Bank Minnesota, National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of November 1,
1999, between Merrill Lynch Mortgage Investors, Inc. and
Merrill Lynch Mortgage Capital Inc.
99.2 Mortgage Loan Purchase Agreement, dated as of November 1,
1999, between Merrill Lynch Mortgage Investors, Inc. and Paine
Webber Real Estate Securities, Inc.
99.3 Mortgage Loan Purchase Agreement, dated as of November 1, 1999
between Merrill Lynch Mortgage Investors, Inc. and ORIX Real
Estate Capital Markets, LLC.
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MERRILL LYNCH MORTGAGE INVESTORS, INC.
$531,719,000 (Approximate)
Mortgage Pass-Through Certificates
Series 1999-C1
UNDERWRITING AGREEMENT
New York, New York
October 29, 1999
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center, North Tower
New York, New York 10281
PaineWebber Incorporated
1285 Avenue of the Americas, 19th Floor
New York, New York 10019
Ladies and Gentlemen:
Merrill Lynch Mortgage Investors, Inc., a Delaware corporation (the
"Company"), proposes to cause to be issued its Mortgage Pass-Through
Certificates, Series 1999-C1 (the "Certificates"), consisting of 14 classes
designated as the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class IO, Class F, Class G, Class H, Class J, Class K, Class R-I, Class R-II and
Class R-III Certificates under a Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), to be dated as of November 1, 1999, among the
Company, as depositor (the "Depositor"), ORIX Real Estate Capital Markets, LLC,
as master servicer (in such capacity, the " Master Servicer"), ORIX Real Estate
Capital Markets, LLC, as special servicer (in such capacity, the "Special
Servicer"), Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") and proposes to sell the Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F and Class IO Certificates (collectively, the "Offered
Certificates") to Merrill Lynch, Pierce, Fenner & Smith Incorporated and
PaineWebber Incorporated as underwriters (each an "Underwriter" and
collectively, the "Underwriters"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in a trust (the "Trust")
primarily consisting of a segregated pool (the "Mortgage Pool") of conventional
monthly pay fixed rate mortgage loans secured by commercial, multifamily,
health-care related and manufactured housing properties (the "Mortgage Loans").
The Mortgage Loans will be purchased by the Company from Paine Webber Real
Estate Securities Inc., Merrill Lynch Mortgage Capital Inc. and ORIX Real Estate
Capital Markets, LLC (collectively, the "Mortgage Loan Sellers") pursuant to
three Mortgage Loan Purchase and Sale Agreements (collectively, together with
any supplements thereto, the "Mortgage Loan Purchase Agreements"), each by and
between the Company and the applicable Mortgage Loan Seller, in exchange for
immediately available funds. The Offered Certificates are
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described more fully in the Registration Statement (as hereinafter defined).
This is to confirm the arrangements with respect to your purchase of the Offered
Certificates.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-38073) for the registration of the Offered Certificates, among other
mortgage pass-through certificates, under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to you. Such registration statement, as
amended as of the date hereof, meets the requirements set forth in Rule
415(a)(1)(x) under the 1933 Act and complies in all other material respects with
the 1933 Act and the rules and regulations thereunder. The Company proposes to
file with the Commission pursuant to Rule 424 under the 1933 Act a supplement to
the form of prospectus included in such registration statement relating to the
Offered Certificates and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect to the
Offered Certificates and the Mortgage Pool to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the "Registration Statement"; the prospectus
included in the Registration Statement, as amended, is hereinafter called the
"Basic Prospectus"; such form of prospectus supplemented by the supplement to
the form of prospectus relating to the Offered Certificates, in the form in
which it shall be first filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus that has
heretofore been filed pursuant to Rule 424 or, prior to the effective date of
the Registration Statement, pursuant to Rule 402(a) or Rule 424(a) is
hereinafter called a "Preliminary Final Prospectus."
(b) (i) The Registration Statement, as of its effective date or the
effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no
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representations or warranties as to the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Underwriter
specifically for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
full power and authority (corporate and other) to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement; and the Company has received no notice of
proceedings relating to the revocation or modification of any license,
certificate, authority or permit applicable to its owning such properties or
conducting such business which singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the conduct of the business or the operations, financial condition or income of
the Company.
(d) At each of the following times there has not been and will not
have been or, to the knowledge of the Company, there is not contemplated and
will not have been contemplated by the Commission, (i) any request by the
Commission for any further amendment of the Registration Statement or the Final
Prospectus or for any additional information that has not been complied with,
(ii) any issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose: (a) the date on which the Final Prospectus is first filed pursuant to
Rule 424 under the 1933 Act; (b) each date, prior to the Closing Date (as
hereinafter defined), on which any amendment to the Registration Statement
becomes effective; (c) the date on which any supplement to the Final Prospectus
is filed with the Commission; and (d) the Closing Date.
(e) This Agreement and the Mortgage Loan Purchase Agreements have
been, and the Pooling and Servicing Agreement when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Company, and each constitutes, or will constitute when so
executed and delivered, a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law and (iii)
public policy considerations underlying the securities laws.
(f) The Offered Certificates and the Pooling and Servicing Agreement
will each conform in all material respects to the descriptions thereof contained
in the Final Prospectus, and the Offered Certificates will have been duly
authorized prior to the issuance thereof, and the Offered Certificates will be
validly issued and outstanding and shall be entitled to the benefits of the
Pooling and Servicing Agreement, except as the enforceability thereof may be
limited by the effects of (i) bankruptcy, reorganization, insolvency,
moratorium, receivership, liquidation or
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other similar laws affecting the enforcement of the rights of creditors, (ii)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) public policy considerations
underlying the securities laws.
(g) Neither the issuance of the Certificates, nor the execution and
delivery by the Company of this Agreement, the Mortgage Loan Purchase Agreements
or the Pooling and Servicing Agreement, nor the consummation by the Company of
any of the transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will conflict with or result in a
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or conflict with, result in a breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company, which, in any such case, would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, the
Mortgage Loan Purchase Agreements or the Pooling and Servicing Agreement. The
Company is not a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and adversely
affects, or is reasonably likely in the future to materially and adversely
affect, the ability of the Company to perform its obligations under this
Agreement, the Mortgage Loan Purchase Agreements or the Pooling and Servicing
Agreement.
(h) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and
Servicing Agreement or the Offered Certificates, (ii) seeking to prevent the
issuance of the Offered Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (iii) that might materially
and adversely affect the performance by the Company of its obligations under, or
the validity or enforceability of, this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or the Offered Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Offered Certificates as described in the Final Prospectus.
(i) The Trust created by the Pooling and Servicing Agreement will
not be required to be registered as an investment company under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the Pooling
and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(j) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
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will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Offered Certificates to the
Underwriters. The Company is not selling Certificates to the Underwriters with
any intent to hinder, delay or defraud any creditors of the Company.
(k) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Certificates hereunder or the consummation of the transactions of the
Company contemplated by this Agreement, except such as may be required under the
1933 Act Regulations, the 1939 Act Regulations or state securities or blue sky
laws and except as has been or will be obtained prior to the Closing Date and
except for any documents permitted to be filed on Form 8-K after the Closing
Date and any Computational Materials provided to the Company in accordance with
Section 9 herein.
(l) The Company has filed all federal, state, local and foreign tax
returns that are required to be filed or has duly requested extensions thereof
and has paid all taxes required to be paid by it and any related assessments,
fines or penalties, except for any such tax, assessment, fine or penalty that is
being contested in good faith and by appropriate proceedings; and adequate
charges, accruals and reserves have been provided for in respect of all federal,
state, local and foreign taxes for all periods as to which the tax liability of
the Company has not been finally determined or remains open to examination by
applicable taxing authorities.
(m) On the Closing Date, the Company (i) will have good and
marketable title to the Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest placed thereon by the
Company (collectively, "Liens"), to the extent good and marketable title to the
Mortgage Loans is transferred to the Company, and (ii) will have the power and
authority to transfer such Mortgage Loans to the Trust, and upon execution and
delivery of the Pooling and Servicing Agreement by the Trust, the Trust will
have acquired ownership of all of the Company's right, title and interest in and
to the related Mortgage Loans.
(n) Any taxes, fee and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements and the Certificates
payable by the Company (other than income taxes) have been paid or will be paid
at or prior to the Closing Date.
2. Purchase and Sale. Subject to the terms and conditions, and in reliance
upon the representations and warranties, set forth herein, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the applicable purchase price set
forth in a letter agreement dated as of even date herewith by and among the
Company and the Underwriters (the "Purchase Letter"), the respective portions of
each Class of the Offered Certificates set forth opposite such Underwriter's
name in Schedule I hereto, plus accrued interest on each such Class at the
related Pass-Through Rate from November 1, 1999 to but not including the Closing
Date.
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3. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made in the manner, on the date and at the time specified
in the Purchase Letter (or such later date not later than seven business days
after such specified date as the Underwriters shall designate), which date and
time may be postponed by agreement between the Underwriters and the Company or
as provided in Section 8 hereof (such date and time of delivery and payment for
the Offered Certificates being herein called the "Closing Date"). Delivery of
the Offered Certificates as set forth in the Purchase Letter shall be made to
the Underwriters for their respective accounts against payment by wire transfer
of immediately available funds by the several Underwriters of the applicable
purchase price as set forth in the Purchase Letter. Unless delivery is made
through the facilities of The Depository Trust Company, the Offered Certificates
shall be registered in such names and in such authorized denominations as the
Underwriters may request not less than 3 full business days in advance of the
Closing Date.
(b) The Company agrees to have the Offered Certificates available
for inspection, checking and packaging by the Underwriters in New York, New
York, not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Offered Certificates for sale to the public as set forth in
the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will not file, on or prior to the Closing Date, any
amendment to the Registration Statement or file any supplement to (including the
supplement relating to the Offered Certificates included in the Final
Prospectus) the Basic Prospectus unless the Company has furnished to you a copy
for your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus to be transmitted to the Commission
for filing pursuant to Rule 424 under the 1933 Act. The Company will promptly
advise the Underwriters (i) when the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or
the Final Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
or supplement the Final Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the
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Company will promptly prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment of the Registration Statement, will use its reasonable best efforts to
cause such amendment of the Registration Statement to be made effective as soon
as possible.
(c) The Company will (i) furnish to the Underwriters and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request, and (ii) file
promptly all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), subsequent to the
date of the Final Prospectus and for so long as the delivery of a prospectus by
an underwriter or dealer in connection with the Offered Certificates may be
required under the 1933 Act. The Company will file with the Commission within 15
days of the issuance of the Offered Certificates a report on Form 8-K setting
forth specific information concerning the Offered Certificates and the Mortgage
Pool to the extent that such information is not set forth in the Final
Prospectus.
(d) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will make available to the Underwriters the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.13 of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.14
of the Pooling and Servicing Agreement, as soon as such statements are furnished
to the Company. The Pooling and Servicing Agreement will provide that the Master
Servicer and the Special Servicer furnish to the Underwriters all reports
compiled by either of them pursuant to the Pooling and Servicing Agreement under
the same terms and conditions applicable to holders of the Offered Certificates.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) The Company will pay, to the extent not paid by the Mortgage
Loan Sellers pursuant to the Mortgage Loan Purchase Agreements, all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to: (i) the fees and disbursements of its counsel; (ii) the costs
and expenses of printing (or otherwise reproducing) and delivering the Pooling
and Servicing Agreement and the Offered Certificates; (iii) accounting fees and
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disbursements; (iv) the costs and expenses in connection with the qualification
or exemption of the Offered Certificates under state securities or blue sky laws
not to exceed $10,000, including filing fees and reasonable fees and
disbursements of counsel in connection with the preparation of any blue sky
survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; (v) the expenses of printing any
such blue sky survey and legal investment survey; (vi) the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto), the Basic Prospectus, the Preliminary
Final Prospectus and the Final Prospectus, the preparation and printing of this
Agreement and the furnishing to the Underwriters of such copies of each
Preliminary Final Prospectus and Final Prospectus as the Underwriters may
reasonably request and (vii) the fees of each Rating Agency (as defined herein).
The Underwriters shall be responsible for paying all costs and expenses incurred
by them in connection with the offering of the Offered Certificates.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Offered Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed after the date hereof and
prior to the Closing Date and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted for
filing with the Commission in accordance with Rule 424 under the 1933 Act.
(b) The Company shall have delivered to you a certificate of the
Company, signed by the Chairman, the President, a managing director, a vice
president or an assistant vice president of the Company and dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; (ii) the Company has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date; (iii) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened and (iv) nothing has come to the attention of
such officer that would lead such officer to believe that the Final Prospectus
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Underwriters shall have received from Willkie Farr &
Gallagher, special counsel for the Company, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
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(i) The Company is a corporation in good standing under the
laws of the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto
have become effective under the 1933 Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, and not withdrawn, no proceedings for that purpose
have been instituted or threatened, and not terminated, and the Registration
Statement, the Final Prospectus and each amendment thereof or supplement thereto
as of their respective effective or issue dates complied as to form in all
material respects with the applicable requirements of the 1933 Act and the rules
and regulations thereunder; and such counsel does not believe that the
Registration Statement (which, for purposes of this clause, shall not be deemed
to include any exhibits thereto or any documents or other information
incorporated therein by reference), or any amendment thereof, at the time it
became effective and at the date of this Agreement, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus as of its issue date and as of the Closing Date, or as
amended or supplemented, as of the issue date of such amendment or supplement
and as of the Closing Date, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(iii) This Agreement, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements have been duly authorized, executed and
delivered by the Company and each such agreement constitutes a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors, (B) general
principles of equity, whether enforcement is sought in a proceeding in equity or
at law and (C) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability of
the provisions of such agreements that purport to provide indemnification or
contribution from securities law liabilities;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be entitled
to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final
Prospectus, as the case may be, under the headings "Certain Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, are correct in
all material respects;
(vi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust created by the Pooling
and Servicing Agreement is not required to be registered under the Investment
Company Act;
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(vii) No consent, approval, authorization or order of any New
York or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein, except such
as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Offered Certificates by the
Underwriters, and any recordation of the assignment of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet been
completed and such other approvals as have been obtained; and
(viii) Neither the issuance and sale or transfer of the
Certificates, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of the Mortgage Loan
Purchase Agreements or the Pooling and Servicing Agreement will conflict with or
result in a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of incorporation or by-laws
of the Company, or, to the knowledge of such counsel, any indenture or other
agreement or instrument to which the Company is a party or by which it is bound,
or any New York or federal statute or regulation applicable to the Company or,
to the knowledge of such counsel, any order of any New York or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
Such opinion may (x) express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Mortgage
Loan Purchase Agreements and the Pooling and Servicing Agreement, (y) assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company and (z) be
qualified as an opinion only on the federal laws of the United States of America
and the laws of the State of Delaware. Additionally, if so rendered, Willkie
Farr & Gallagher may rely on the opinion of in-house counsel for the Company as
to matters relating to the Company.
(d) The Underwriters shall have received from Deloitte & Touche LLP
(the "Accountant"), one or more letters, dated the date hereof and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters.
(e) The Certificates have been given the rating, if any, set forth
in the Final Prospectus by Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies ("S&P") and Duff & Phelps Credit Rating Co. ("DCR" and,
together with S&P, the "Rating Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, an opinion in form and substance
satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
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(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters.
(i) The Underwriters shall have received from counsel for each of
the Master Servicer and Special Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company or each Mortgage Loan Seller supplied to the Rating
Agencies or the Trustee relating to certain matters with respect to the Offered
Certificates, the Mortgage Loan Sellers and the Mortgage Loans. Any such
opinions shall be dated the Closing Date and addressed to the Underwriters or
accompanied by the reliance letters to the Underwriters or shall state that the
Underwriters may rely upon them.
(k) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such further
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each Underwriter,
and each person who controls any Underwriter within the meaning of either the
1933 Act or the 1934 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation or at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or Pool Information contained in
any Structural Term Sheets or Collateral Term Sheets or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses
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<PAGE>
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (a) in reliance upon and in conformity with any Underwriter Information
(as defined in Section 9) or (b) arising out of or based upon the failure of any
Underwriter to comply with any provision of Section 9 hereof; provided, further,
however, that with respect to any untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, the indemnity contained in this subsection (a) shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased the Offered Certificates
(or to the benefit of any person controlling such Underwriter), to the extent
that any such loss, claim, damage or liability of such Underwriter or
controlling person results from the fact that a copy of the Basic Prospectus or
the Final Prospectus correcting such misstatement or omission and previously
delivered to such Underwriter was not sent or given to such person at or prior
to the written confirmation of the sale of such Offered Certificates to such
person or from the fact that any amendment of or supplement to the registration
statement for the registration of the Offered Certificates, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus correcting
such misstatement or omission and delivered to the Underwriters at least 24
hours prior to the Closing Date was not sent or given to such person prior to
the settlement of the sale of the Offered Certificates to such person (unless
the Company shall have agreed that such amendment or supplement need not be so
sent or given). This indemnity agreement will be in addition to any liability
which the Company may otherwise have; provided, however, that the Company shall
not be liable to any Underwriter for losses of anticipated profits from the
transactions covered by this Agreement.
(b) Each Underwriter severally will indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person, if any, who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which the Company or any of them
may become subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or any
Underwriter Information contained in an 8-K (containing Furnished Term Sheets or
Furnished Computational Materials) or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) the failure of such Underwriter or any member of
its selling group to comply with any provision of Section 9 hereof, and each
Underwriter agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
but, in the case of clause (i) above, only with reference to written information
furnished to the Company by or on behalf of such Underwriter or any member of
its selling group, specifically for use in the
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Registration Statement, or in any revision or amendment thereof, or supplement
thereto, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, and, in the case of clause (ii) above, only the Underwriter
who failed to comply with Section 9 hereof shall have the foregoing obligations
for such failure, provided however, that each such Underwriter shall have the
foregoing obligations for any such failure by any member of its selling group.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party (x) hereunder unless such failure to notify prejudices the
position of the indemnifying party or results in the loss of one or more
defenses to the related cause of action or (y) otherwise than under this Section
7. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice, delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel (and one local
counsel, if it deems so necessary) to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by any indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing the
indemnified parties under subsection (a) who are parties to such action), (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any indemnifiable losses, claims, damages and liabilities by reason of such
settlement. No indemnifying party who has elected to assume the defense of such
action shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action
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in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable in accordance with its terms to an indemnified party
under this Section 7, then the Company and each Underwriter, to the extent of
underwriting discounts and commissions received by it, shall individually
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a) or
(b) above, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company, on the one hand, and each Underwriter, on the
other hand, from the offering of the Offered Certificates (taking into account
the portion of the proceeds of the offering realized by each party) and (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also to reflect the relative fault of the
Company on the one hand and each Underwriter on the other in connection with the
statement or omission or failure to comply that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations
(taking into account the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission or failure to
comply, and any other equitable consideration appropriate under the
circumstances). The relative benefits received by the Company on the one hand
and each Underwriter, including any member of its selling group (in each case,
as set forth on Schedule I), on the other shall be in such proportion as the
total net proceeds from the offering of the Offered Certificates (before
deducing expenses) received by the Company bear to the total underwriting
discounts and commissions received by each Underwriter, including any member of
its selling group, with respect to such offering. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the respective
Underwriter, or any member of its selling group, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission or failure to comply. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were to be determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the subject
of this subsection (d) subject to the limitations therein provided under
subsection (c). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Certificates underwritten and
distributed by it were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise paid or become liable to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of
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fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) or willful failure to comply with Section 9 hereof shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation or willful failure to comply. The Underwriters' obligation in
this subsection 7(d) to contribute shall be several in proportion to their
respective underwriting obligations and not joint.
(e) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which any Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation or at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement of material fact contained in any
computational or other written materials developed by, mailed or otherwise
transmitted by such indemnifying Underwriter or any member of its selling group,
in connection with the Offered Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 9 hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
8. Default by an Underwriter. If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
nondefaulting Underwriters may make arrangements for the purchase of the Offered
Certificates which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Section 5(f) and except
that the provisions of Sections 7 and 9 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriters" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule I hereto that, pursuant to this Section 8 purchases Offered
Certificates which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Offered Certificates of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of the counsel for the Company or counsel for the Underwriters may be necessary
in the Registration Statement and/or the Final Prospectus or in any other
document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and/or the Final
Prospectus that effects any such changes.
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9. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on which
the Registration Statement became effective and up to and including the date on
which the Final Prospectus with respect to the Offered Certificates is first
made available to the Underwriters, the Underwriters, including any member of
its selling group, may furnish to various potential investors in Offered
Certificates, in writing: (i) "Computational Materials", as defined in a
no-action letter (the "Kidder No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to Kidder, Peabody Acceptance Corporation I, et al.,
as modified by a no-action letter (the "First PSA No-Action Letter") issued by
the staff of the Commission on May 27, 1994 to the Public Securities Association
(the "PSA") and as further modified by a no-action letter (the "Second PSA
No-Action Letter," and together with the Kidder No-Action Letter and the First
PSA No-Action Letter, the "No-Action Letters") issued by the staff of the
Commission on February 17, 1995 to the PSA; (ii) "Structural Term Sheets", as
defined in the Second PSA No-Action Letter and/or (iii) "Collateral Term
Sheets", as defined in the Second PSA No-Action Letter.
(b) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Final Prospectus pursuant to Rule 424 under the 1933 Act, all
Computational Materials used by such Underwriter, or any member of its selling
group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "Furnished Computational Materials").
(c) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Final Prospectus pursuant to Rule 424 under the Act, all
Structural Term Sheets prepared by such Underwriter, or any member of its
selling group for the Company with respect to the offering of the Offered
Certificates and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the NoAction Letters (such
Structural Term Sheets, the "Furnished Structural Term Sheets").
(d) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, within one business day after the first use
thereof, all Collateral Term Sheets prepared by such Underwriter, or any member
of its selling group for the Company with respect to the offering of the Offered
Certificates, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Collateral Term Sheets, the "Furnished Collateral Term Sheets" and together with
the Furnished Structured Term Sheets, the "Furnished Term Sheets") and shall
advise the Company of the date on which each such Collateral Term Sheet was
first used.
(e) The Company shall cause to be filed with the Commission one or
more current reports on Form 8-K (collectively, together with any amendments and
supplements thereto, the "8-Ks," and each an "8-K") with respect to all
Furnished Computational Materials, Structural Term Sheets and Collateral Term
Sheets used by it or any member of its selling group (pro rating the costs and
expenses thereof in a manner agreed to by the Underwriters) such that such
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Underwriter may avail itself of the relief granted in the No-Action Letters. In
particular, the Company shall cause to be filed with the Commission (i) all of
the Furnished Computational Materials and all of the Furnished Structural Term
Sheets on an 8-K prior to or concurrently with the filing of the Final
Prospectus with respect to the Offered Certificates pursuant to Rule 424 under
the 1933 Act; and (ii) all of its Furnished Collateral Term Sheets on an 8-K not
later than 2 business days after the first use thereof.
(f) Each Underwriter represents and warrants to, and covenants with,
the Company that as presented in any Furnished Term Sheets, the Underwriter
Information (defined below) is not misleading and not inaccurate in any material
respect and that any Pool Information (defined below) contained in any Furnished
Term Sheets prepared by it which is not otherwise inaccurate in any material
respect is not presented in such Furnished Term Sheets prepared by it in a way
that is either misleading or inaccurate in any material respect. Each
Underwriter further covenants with the Company that if any Computational
Materials or ABS Term Sheets (as such term is defined in the Second PSA
No-Action Letter) contained in any Furnished Term Sheets are found to include
any information that is misleading or inaccurate in any material respect, such
Underwriter promptly shall inform the Company of such finding, provide the
Company with revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be, in order to remit to the Company to cause to be
delivered for filing to the Commission in accordance herewith, an 8-K containing
such revised and/or corrected Computational Materials or ABS Term Sheets, as the
case may be and such other information as may be necessary in order to permit
the Company to fulfill its obligations under Section 5(b).
(g) Each Underwriter covenants that all Computational Materials and
ABS Term Sheets used by it shall contain the following legend or such other
legend as typically used by the Underwriter:
PROSPECTIVE INVESTORS ARE ADVISED TO READ CAREFULLY, AND SHOULD RELY
SOLELY ON, THE INFORMATION CONTAINED IN THE FINAL PROSPECTUS
SUPPLEMENT TO THE PROSPECTUS DATED OCTOBER 15, 1999 RELATING TO
CERTAIN CLASSES OF CERTIFICATES REFERRED TO ABOVE (THE
"CERTIFICATES") IN MAKING THEIR INVESTMENT DECISION.
THE INFORMATION CONTAINED HERE SHOULD BE REVIEWED ONLY IN
CONJUNCTION WITH A CAREFUL REVIEW OF SUCH PROSPECTUS SUPPLEMENT AND
PROSPECTUS. SUCH INFORMATION DOES NOT INCLUDE ANY INFORMATION
RELATING TO THE STRUCTURE OF THE CERTIFICATES AND DOES NOT INCLUDE
ALL RELEVANT INFORMATION RELATING TO THE UNDERLYING MORTGAGE LOANS.
PARTICULAR ATTENTION SHOULD BE PAID TO THE RISKS AND SPECIAL
CONSIDERATIONS ASSOCIATED WITH AN INVESTMENT IN THE CERTIFICATES
DESCRIBED IN
17
<PAGE>
SUCH PROSPECTUS SUPPLEMENT AND PROSPECTUS. THE INFORMATION CONTAINED
IN THIS EXHIBIT SHOULD NOT BE VIEWED AS PROJECTIONS, FORECASTS,
PREDICTIONS OR OPINIONS WITH RESPECT TO VALUE.
ANY INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. FURTHERMORE, ANY INFORMATION CONTAINED HEREIN WILL BE
MORE FULLY DESCRIBED IN THE FINAL PROSPECTUS SUPPLEMENT AND
PROSPECTUS, AND SUCH INFORMATION CONTAINED HEREIN WILL BE FULLY
SUPERSEDED THEREBY. PRIOR TO MAKING ANY INVESTMENT DECISION, A
PROSPECTIVE INVESTOR SHOULD RECEIVE AND CAREFULLY REVIEW SUCH
PROSPECTUS SUPPLEMENT AND PROSPECTUS.
NOTHING HEREIN SHOULD BE CONSIDERED AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE CERTIFICATES.
(h) Each Underwriter covenants that all Collateral Term Sheets not
otherwise prepared by or on behalf of the Company (other than the initial
Collateral Term Sheet) used by it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS, IF ANY."
(i) For purposes of this Agreement, the term "Underwriter
Information" means any written information furnished to the Company by either
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any Preliminary Final Prospectus or Final Prospectus or such
portion, if any, of the information contained in any Furnished Term Sheets that
is not Pool Information or Prospectus Information; provided, however, that
information contained in Furnished Term Sheets that is not Pool Information or
Prospectus Information shall not constitute Underwriter Information to the
extent such information is inaccurate or misleading in any material respect as a
result of it being based on Pool Information or Prospectus Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished to the Underwriters by the Company regarding the Mortgage
Loans and "Prospectus Information" means the information contained in (but not
incorporated by reference in) any Preliminary Final Prospectus or Final
Prospectus; provided, however, that if any information that would otherwise
constitute Pool Information or Prospectus Information is presented in any
Furnished Term Sheets in a way that is either inaccurate or misleading in any
material respect, such information shall not be Pool Information or Prospectus
Information.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment
18
<PAGE>
for all Certificates if prior to such time (i) trading in securities generally
on the New York Stock Exchange or the American Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis, the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Underwriters, impracticable to market the Offered Certificates
on the terms specified herein.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Offered Certificates. The provisions of
Section 7 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, hand
delivered or sent by facsimile transmission and confirmed to them at, in the
case of PaineWebber Incorporated, to it at 1285 Avenue of the Americas, 19th
Floor, New York, New York 10019, Attention: John A. Taylor, Managing Director,
fax number (212) 713-8606, in the case of Merrill Lynch, Pierce, Fenner & Smith
Inc., to it at World Financial Center, New York, New York 10281, Attention:
Michael McGovern, fax number (212) 449-0265; or, if sent to the Company, will be
mailed, hand delivered or sent by facsimile transmission and confirmed to it at
Merrill Lynch Mortgage Investors, Inc., World Financial Center, North Tower, New
York, New York 10281, Attention: Secretary, with a copy to the Treasurer.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
[Signature Page Follows]
19
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
MERRILL LYNCH MORTGAGE INVESTORS, INC.
By: /s/ Michael M. McGovern
-------------------------------------
Name: Michael M. McGovern
Title: Authorized Signatory
S-1
<PAGE>
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
PAINEWEBBER INCORPORATED
By: /s/ Steven J. Plust
--------------------------------
Name: Steven J. Plust
Title: Managing Director
S-2
<PAGE>
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Michael E. Norris
--------------------------------
Name: Michael E. Norris
Title: Authorized Signatory
S-3
<PAGE>
SCHEDULE I
Class Merrill Lynch, Pierce, Fenner PaineWebber Incorporated
& Smith Incorporated
- ---------- ----------------------------- ------------------------
Class A-1 $46,000,000 $51,600,000
Class A-2 $160,000,000 $177,847,000
Class B $15,700,000 $16,884,000
Class C $13,660,000 $13,000,000
Class D $4,000,000 $4,887,000
Class E $10,735,000 $10,000,000
Class F $3,406,000 $4,000,000
Class IO $280,000,000 $312,445,159
I-1
<PAGE>
Execution Copy
=====================================
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Master Servicer
and
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1999
Mortgage Pass-Through Certificates
Series 1999-C1
=====================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms....................................................3
Accrued Certificate Interest.................................................3
Accrued Component Interest...................................................3
Acquisition Date.............................................................3
Additional Information.......................................................3
Additional Interest..........................................................3
Additional Interest Distribution Account.....................................3
Additional Interest Rate.....................................................3
Additional Trust Fund Expense................................................4
Advance......................................................................4
Adverse REMIC Event..........................................................4
Affiliate....................................................................4
Agreement....................................................................4
Anticipated Repayment Date...................................................4
Appraisal....................................................................4
Appraisal Reduction..........................................................4
Appraisal Reduction Amount...................................................5
Appraisal Reduction Event....................................................5
Appraised Value..............................................................6
ARD Mortgage Loans...........................................................6
Asset Status Report..........................................................6
Assignment of Leases.........................................................6
Assumed Scheduled Payment....................................................6
Authenticating Agent.........................................................6
Available Distribution Amount................................................7
Balloon Mortgage Loan........................................................7
Balloon Payment..............................................................7
Bankruptcy Code..............................................................7
Book-Entry Certificate.......................................................7
Breach.......................................................................7
Business Day.................................................................7
CERCLA.......................................................................7
Certificate..................................................................8
Certificate Account..........................................................8
Certificate Deferred Interest................................................8
Certificate..................................................................8
i
<PAGE>
Certificate Notional Amount..................................................8
Certificate Owner............................................................8
Certificate Principal Balance................................................8
Certificate Register.........................................................8
Certificate Registrar........................................................8
Certificateholder............................................................8
Class........................................................................9
Class A-1 Certificate........................................................9
Class A-2 Certificate........................................................9
Class B Certificate..........................................................9
Class C Certificate..........................................................9
Class D Certificate..........................................................9
Class E Certificate.........................................................10
Class F Certificate.........................................................10
Class G Certificate.........................................................10
Class H Certificate.........................................................10
Class IO Certificate........................................................10
Class J Certificate.........................................................10
Class K Certificate.........................................................10
Class Principal Balance.....................................................10
Class R-I Certificate.......................................................10
Class R-II Certificate......................................................11
Class R-III Certificate.....................................................11
Closing Date................................................................11
CMSA Loan Periodic Report...................................................11
CMSA Property File Report...................................................11
Code........................................................................11
Collection Period...........................................................11
College Square Loan.........................................................11
Comparative Financial Status Report.........................................11
Component...................................................................11
Component Notional Amount...................................................12
Control Person":............................................................12
Controlling Class...........................................................12
Controlling Class Representative............................................12
Corporate Trust Office......................................................12
Corrected Mortgage Loan.....................................................12
Custodian...................................................................12
Cut-off Date................................................................12
Cut-off Date Balance........................................................12
DCR.........................................................................12
Debt Service Coverage Ratio.................................................13
Defaulted Mortgage Loan.....................................................13
Defeasance Collateral.......................................................13
ii
<PAGE>
Defeasance Loan.............................................................13
Definitive Certificate......................................................13
Delinquent Loan Status Report...............................................13
Depositor...................................................................13
Depository..................................................................13
Depository Participant......................................................14
Determination Date..........................................................14
Directly Operate............................................................14
Disqualified Organization...................................................14
Distributable Certificate Interest..........................................14
Distribution Account........................................................15
Distribution Date...........................................................15
Distribution Date Statement.................................................15
Document Defect.............................................................15
Due Date....................................................................15
Eligible Account............................................................15
Environmental Assessment....................................................16
ERISA.......................................................................16
Escrow Payment..............................................................16
Event of Default............................................................16
Exchange Act................................................................16
FDIC........................................................................16
FHLMC.......................................................................16
Final Recovery Determination................................................16
FNMA........................................................................16
Hazardous Materials.........................................................16
Historical Loan Modification Report.........................................16
Historical Loss Estimate Report.............................................17
Holder......................................................................17
HUD-Approved Servicer.......................................................17
Impound Reserve.............................................................17
Independent.................................................................17
Independent Appraiser.......................................................17
Independent Contractor......................................................17
Insurance Policy............................................................18
Insurance and Condemnation Proceeds.........................................18
Interest Reserve Account....................................................18
Interested Person...........................................................18
Investment Account..........................................................18
Issue Price.................................................................18
Late Collections............................................................18
Liquidation Event...........................................................19
Liquidation Fee.............................................................19
Liquidation Fee Rate........................................................19
iii
<PAGE>
Liquidation Proceeds........................................................19
Loan-to-Value Ratio.........................................................19
Majority Subordinate Certificateholder......................................20
Master Servicer.............................................................20
Master Servicing Fee........................................................20
Master Servicing Fee Rate...................................................20
Merrill Lynch...............................................................20
Monthly Payment.............................................................20
Moody's.....................................................................20
Mortgage....................................................................20
Mortgage Deferred Interest..................................................20
Mortgage File...............................................................21
Mortgage Loan...............................................................22
Mortgage Loan Purchase Agreements...........................................22
Mortgage Loan Schedule......................................................22
Mortgage Loan Seller........................................................23
Mortgage Note...............................................................23
Mortgage Pool...............................................................23
Mortgage Rate...............................................................23
Mortgaged Property..........................................................23
Mortgagor...................................................................23
Net Aggregate Prepayment Interest Shortfall.................................23
Net Investment Earnings.....................................................24
Net Investment Loss.........................................................24
Net Mortgage Rate...........................................................24
Net Operating Income........................................................24
New Lease...................................................................24
NOI Adjustment Worksheet....................................................24
Nonrecoverable Advance......................................................24
Non-Registered Certificate..................................................25
Non-United States Person....................................................25
Officers' Certificate.......................................................25
Operating Statement Analysis................................................25
Opinion of Counsel..........................................................25
Original Component Notional Amount..........................................25
Original Class Principal Balance............................................25
ORIX........................................................................25
ORIX Loans..................................................................25
OTS.........................................................................25
Ownership Interest..........................................................25
Pass-Through Rate...........................................................26
PaineWebber.................................................................26
Paying Agent................................................................26
Penalty Charges.............................................................26
iv
<PAGE>
Percentage Interest.........................................................26
Percentage Premium..........................................................26
Permitted Investments.......................................................27
Permitted Transferee........................................................28
Person......................................................................28
P&I Advance.................................................................28
P&I Advance Date............................................................29
Plan........................................................................29
Plurality Residual Certificateholder........................................29
Prepayment Assumption.......................................................29
Prepayment Interest Excess..................................................29
Prepayment Interest Shortfall...............................................29
Prepayment Premium..........................................................29
Prime Rate..................................................................29
Principal Distribution Amount...............................................30
Principal Prepayment........................................................31
Prospectus..................................................................31
Prospectus Supplement.......................................................31
Purchase Price..............................................................31
Qualified Insurer...........................................................31
Qualified Substitute Mortgage Loan..........................................32
Rated Final Distribution Date...............................................32
Rating Agency...............................................................32
Realized Loss...............................................................33
Record Date.................................................................33
Registered Certificate......................................................33
Regular Certificate.........................................................33
Reimbursement Rate..........................................................33
Remaining Cash Flow.........................................................33
REMIC.......................................................................33
REMIC I.....................................................................34
REMIC I Remittance Rate.....................................................34
REMIC II....................................................................34
REMIC II Regular Interest...................................................34
REMIC II Remittance Rate....................................................34
REMIC III...................................................................34
REMIC III Certificate.......................................................35
REMIC Administrator.........................................................35
REMIC Provisions............................................................35
Rents from Real Property....................................................35
REO Account.................................................................35
REO Acquisition.............................................................35
REO Disposition.............................................................35
REO Extension...............................................................35
v
<PAGE>
REO Loan....................................................................35
REO Property................................................................36
REO Revenues................................................................36
REO Tax.....................................................................36
REO Status Report...........................................................36
Request for Release.........................................................36
Reserve Account.............................................................36
Reserve Funds...............................................................36
Residual Certificate........................................................36
Responsible Officer.........................................................36
Retained Fee................................................................37
Retained Fee Rate...........................................................37
Revised Rate................................................................37
Scheduled Payment...........................................................37
Securities Act..............................................................37
Senior Certificate..........................................................37
Sequential Pay Certificate..................................................37
Servicing Account...........................................................37
Servicing Advances..........................................................37
Servicing File..............................................................38
Servicing Officer...........................................................38
Servicing Standard..........................................................38
Servicing Transfer Event....................................................38
Single Certificate..........................................................39
Special Servicer............................................................39
Special Servicing Fee.......................................................39
Special Servicing Fee Rate..................................................39
Specially Serviced Mortgage Loan............................................39
Standard & Poor's...........................................................39
Startup Day.................................................................40
State and Local Taxes.......................................................40
Stated Maturity Date........................................................40
Stated Principal Balance....................................................40
Subordinated Certificate....................................................40
Sub-Servicer................................................................40
Sub-Servicing Agreement.....................................................40
Substitution Shortfall Amount...............................................41
Tax Matters Person..........................................................41
Tax Returns.................................................................41
Transfer....................................................................41
Transferee..................................................................41
Transferor..................................................................41
Trust Fund..................................................................41
Trustee.....................................................................41
vi
<PAGE>
Trustee Fee.................................................................41
Trustee Fee Rate............................................................42
Trustee Liability...........................................................42
UCC.........................................................................42
UCC Financing Statement.....................................................42
Uncertificated Accrued Interest.............................................42
Uncertificated Distributable Interest.......................................42
Uncertificated Principal Balance............................................42
Underwriter.................................................................43
Uninsured Cause.............................................................43
United States Person........................................................43
USAP........................................................................43
Voting Rights...............................................................43
Watch List..................................................................43
Weighted Average Effective REMIC I Remittance Rate..........................44
Withheld Amounts............................................................44
Workout Fee.................................................................44
Workout Fee Rate............................................................44
Yield Maintenance Charge....................................................44
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans....................................45
SECTION 2.02. Acceptance of the Trust Fund by Trustee.........................46
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of Mortgage
Loans for Document Defects and Breaches of Representations
and Warranties................................................47
SECTION 2.04. Representations and Warranties of Depositor.....................49
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests...........51
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by Trustee.................................................51
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates..................................................52
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of REMIC
III by Trustee................................................52
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates .................................................52
vii
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the
Mortgage Loans.............................................. .53
SECTION 3.02. Collection of Payments..........................................55
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts............................................56
SECTION 3.04. The Certificate Account, the Additional Interest
Distribution Account and the Distribution Account.............58
SECTION 3.05. Permitted Withdrawals From the Certificate Account and the
Distribution Account..........................................61
SECTION 3.06. Investment of Funds in the Certificate Account, Additional
Interest Distribution Account and REO Accounts................65
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.............................................66
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements.......70
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals..71
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.................76
SECTION 3.11. Servicing Compensation..........................................76
SECTION 3.12. Inspections; Collection of Financial Statements.................79
SECTION 3.13. Annual Statement as to Compliance...............................82
SECTION 3.14. Reports by Independent Public Accountants.......................82
SECTION 3.15. Access to Certain Information...................................83
SECTION 3.16. Title to REO Property; REO Account..............................84
SECTION 3.17. Management of REO Property......................................86
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties.............88
SECTION 3.20. Modifications, Waivers, Amendments and Consents.................91
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report.................96
SECTION 3.22. Sub-Servicing Agreements.......................................100
SECTION 3.23. Representations and Warranties of the Master Servicer..........103
SECTION 3.24. Representations and Warranties of the Special Servicer.........105
SECTION 3.25. Interest Reserve Account.......................................107
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................107
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic Update
Report.......................................................117
viii
<PAGE>
SECTION 4.03. P&I Advances...................................................122
SECTION 4.04. Allocation of Realized Losses, Additional Trust Fund Expenses
and Appraisal Reductions.....................................124
SECTION 4.05. Calculations...................................................125
SECTION 4.06. Use of Agents..................................................125
SECTION 4.07. Certificate Deferred Interest..................................126
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................128
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........128
SECTION 5.03. Book-Entry Certificates........................................133
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............134
SECTION 5.05. Persons Deemed Owners..........................................135
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer...135
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer.................................135
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer.............................................136
SECTION 6.04. Resignation of Master Servicer and the Special Servicer;
Assignment of Rights and Obligations.........................137
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer
and the Special Servicer.....................................138
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee.................................................138
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer.....................................................138
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special
Servicer.....................................................138
SECTION 6.09. Designation of Special Servicer by the Controlling Class.......139
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate..140
SECTION 6.11. The Controlling Class Representative...........................140
ix
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..............................................142
SECTION 7.02. Trustee to Act; Appointment of Successor.......................145
SECTION 7.03. Notification to Certificateholders.............................147
SECTION 7.04. Waiver of Events of Default....................................147
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...........148
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee..............................................148
SECTION 8.02. Certain Matters Affecting Trustee..............................149
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of Certificates
or Mortgage Loans............................................151
SECTION 8.04. Trustee May Own Certificates...................................151
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.......151
SECTION 8.06. Eligibility Requirements for Trustee...........................152
SECTION 8.07. Resignation and Removal of Trustee.............................152
SECTION 8.08. Successor Trustee..............................................154
SECTION 8.09. Merger or Consolidation of Trustee.............................154
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................154
SECTION 8.11. Appointment of Custodians......................................155
SECTION 8.12. Appointment of Authenticating Agents...........................156
SECTION 8.13. Appointment of Paying Agent....................................157
SECTION 8.14. Appointment of REMIC Administrators............................158
SECTION 8.15. Access to Certain Information..................................158
SECTION 8.16. Representations, Warranties and Covenants of Trustee...........159
SECTION 8.17. Reports to the Securities and Exchange Commission; Available
Information..................................................160
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans .......................................................161
SECTION 9.02. Additional Termination Requirements............................164
x
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration..........................................165
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.....................................................169
SECTION 11.02. Recordation of Agreement; Counterparts........................170
SECTION 11.03. Limitation on Rights of Certificateholders....................171
SECTION 11.04. Governing Law.................................................172
SECTION 11.05. Notices.......................................................172
SECTION 11.06. Severability of Provisions....................................172
SECTION 11.07. Grant of a Security Interest..................................173
SECTION 11.08. Successors and Assigns; Beneficiaries.........................173
SECTION 11.09. Article and Section Headings..................................173
SECTION 11.10. Notices to and From Rating Agencies...........................173
SECTION 11.11. Complete Agreement............................................175
xi
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EXHIBITS
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class A-1 Certificate A-1 Section 1.01 Definition
of "Class A-1
Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition
of "Class A-2
Certificate"
Form of Class IO Certificate A-3 Section 1.01 Definition
of "Class IO Certificate"
Form of Class B Certificate A-4 Section 1.01 Definition
of "Class B Certificate"
Form of Class C Certificate A-5 Section 1.01 Definition
of "Class C Certificate"
Form of Class D Certificate A-6 Section 1.01 Definition
of "Class D Certificate"
Form of Class E Certificate A-7 Section 1.01 Definition
of "Class E Certificate"
Form of Class F Certificate A-8 Section 1.01 Definition
of "Class F Certificate"
Form of Class G Certificate A-9 Section 1.01 Definition
of "Class G Certificate"
Form of Class H Certificate A-10 Section 1.01 Definition
of "Class H Certificate"
Form of Class J Certificate A-11 Section 1.01 Definition
of "Class J Certificate"
Form of Class K Certificates A-12 Section 1.01 Definition
of "Class K Certificate"
Form of Class R-I Certificate A-13 Section 1.01 Definition
of "Class R-I
Certificate"
Form of Class R-II Certificate A-14 Section 1.01 Definition
of "Class R-II
Certificate"
xii
<PAGE>
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class R-III Certificate A-15 Section 1.01 Definition
of "Class R-III
Certificate"
Mortgage Loan Schedule B Section 1.01 Definition
of "Mortgage Loan
Schedule"
Form of C Section 2.02(a)
Schedule of Exceptions to
Mortgage File Delivery
Form of Master Servicer D-1 Section 1.01 Definition
Request for Release of "Request for
Release";
Section 2.03(b); Section
3.10(a); and Section
3.10(b)
Form of Special Servicer D-2 Section 1.01 Definition
Request for Release of "Request for
Release"; Section 3.10(b)
Calculation of NOI/Debt E-1 Section 1.01 Definition
Service Coverage Ratios of "Net Operating
Income"; Section 3.12(b)
Form of Transferor Certificate F-1 Section 5.02(b)
Form of Transferee Certificate F-2 Section 5.02(b)
for QIBs
Form of Transferee Certificate F-3 Section 5.02(b)
for Non-QIBs
Form of Transferee Letter for G Section 5.02(c)
Transfers of Subordinated
Certificates to Non-Plan
Entities
Form of Transfer Affidavit and H-1 Section 5.02(d)(i)(B)
Agreement regarding Class R-I,
R-II and R-III Certificates
Form of Transferor Certificate H-2 Section 5.02(d)(i)(D)
regarding Class R-I, R-II and
R-III Certificates
Form of Notice and I-1 Section 6.09
Acknowledgment
xiii
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Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Acknowledgment of I-2 Section 6.09
Proposed Special Servicer
Distribution Date Statement J Section 4.02(a)
Form of Schedule of K Section 4.02(a)
Certificateholders
Form of CMSA Property File L Section 3.12(c)
Report
Form of Comparative Financial M Section 3.12(b) and
Status Report 3.12(c)
Form of REO Status Report N Section 3.12(b) and
3.12(c)
Form of Watch List O Section 3.12(b) and
3.12(c)
Form of Delinquent Loan Status P Section 3.12(b) and
Report 3.12(c)
Form of Historical Loan Q Section 3.12(b) and
Modification Report 3.12(c)
Form of Historical Loss R Section 3.12(b) and
Estimate Report 3.12(c)
Form of NOI Adjustment S Section 3.12(b) and
Worksheet 3.12(c)
Form of Operating Statement T Section 3.12(b) and
Analysis Report 3.12(c)
Form of CMSA Loan Periodic U Section 4.02(b)
Update Report
Form of Confirmation V Section 3.15
Certificate Request by
Beneficial Holder or
Prospective Purchaser
Form of Lost Note Affidavit W Definition of Mortgage
and Indemnity File
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of November 1, 1999, among MERRILL LYNCH MORTGAGE INVESTORS, INC.,
as Depositor, ORIX REAL ESTATE CAPITAL MARKETS, LLC, as Master Servicer, ORIX
REAL ESTATE CAPITAL MARKETS, LLC, as Special Servicer, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans and a portion of the
interest payments thereon (other than Additional Interest on the ARD Mortgage
Loans), as well as certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I". The Class R-I Certificates will represent the sole
class of "residual interests" in REMIC I for purposes of the REMIC Provisions
under federal income tax law. Each REMIC I Regular Interest will relate to one
of the Mortgage Loans (including the ARD Mortgage Loans) that are included in
REMIC I. Each such REMIC I Regular Interest will have a remittance rate equal to
the unmodified Net Mortgage Rate of the Mortgage Loan to which such REMIC I
Regular Interest relates and an initial Uncertificated Principal Balance equal
to the Cut-Off Date Balance of the Mortgage Loan to which such REMIC I Regular
Interest relates.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The REMIC II Remittance Rate with respect to each
Class of REMIC II Regular Interests will be calculated in accordance with the
definition of "REMIC II Remittance Rate". The initial Uncertificated Principal
Balance of each Class of the REMIC II Regular Interests will equal the Original
Class Principal Balance of the corresponding Class of the REMIC III Certificates
described below. None of such REMIC II Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC II Regular Interests and all of
the Additional Interest that is payable with respect to the ARD Mortgage Loans
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC III". The Class R-III Certificates will evidence
the sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. For federal income tax purposes, each
Class of the Regular Certificates (other than the Class IO Certificates) and
each of the Components of the Class IO Certificates will be designated as a
separate "regular interest" in REMIC III for purposes of the REMIC Provisions
under federal income tax law.
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The following table sets forth the Class designation of each Class
of the REMIC III Certificates other than the Class IO Certificates and the Class
R-III Certificates, the corresponding Class of REMIC II Regular Interests, the
corresponding Component of the Class IO Certificates and the Original Class
Principal Balance for each Class of the Regular Certificates other than the
Class IO Certificates.
Corresponding
Class of
Class REMIC II Corresponding Original Class
Designation Regular Interests Component Principal Balance
----------- ----------------- --------- -----------------
Class A-1 P IO-A1 $ 97,600,000
Class A-2 Q IO-A2 $ 337,847,000
Class B R IO-B $ 32,584,000
Class C S IO-C $ 26,660,000
Class D T IO-D $ 8,887,000
Class E U IO-E $ 20,735,000
Class F V IO-F $ 7,406,000
Class G W IO-G $ 23,698,000
Class H X IO-H $ 20,735,000
Class J Y IO-J $ 2,963,000
Class K Z IO-K $ 13,330,159
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates (other than the Class IO Certificates) for any Distribution Date,
one month's interest at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued on the related Class Principal
Balance outstanding immediately prior to such Distribution Date and, with
respect to the Class IO Certificates for any Distribution Date, the sum of
Accrued Component Interest for each of its Components for such Distribution
Date. Accrued Certificate Interest shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months.
"Accrued Component Interest": With respect to each Component of the
Class IO Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Interest": With respect to each of the ARD Mortgage
Loans indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such ARD Mortgage Loan at the Additional Interest Rate and any
interest which accrues on such interest at the Revised Rate. The Additional
Interest shall be an asset of REMIC III.
"Additional Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.04(c), which shall be entitled "Norwest Bank
Minnesota, National Association, as Trustee, in trust for Holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1999-C1, Additional Interest Distribution Account" and which must be an Eligible
Account. The Additional Interest Distribution Account shall be an asset of REMIC
III.
"Additional Interest Rate": With respect to each of the ARD Mortgage
Loans, the excess of (i) the applicable Revised Rate over (ii) the applicable
Mortgage Rate immediately prior to the related Anticipated Repayment Date, each
as set forth in the Mortgage Loan Schedule.
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<PAGE>
"Additional Trust Fund Expense": Any of the following fees and
expenses of the Trust Fund: (1) Special Servicing Fees, (2) Workout Fees, (3)
Liquidation Fees, (4) in accordance with Sections 3.03(d) and 4.03(d), interest
payable to the Master Servicer, the Special Servicer and the Trustee on Advances
(to the extent not offset by late charges on the related Mortgage Loans and
default interest), (5) any of the expenses of the Trust Fund that are reimbursed
pursuant to any of clauses (viii), (ix), (xi), (xiii) and (xxi) of Section
3.05(a) out of general collections on the Mortgage Loans and any REO Properties
on deposit in the Certificate Account, and (6) any of the expenses of the Trust
Fund that are reimbursed pursuant to clause (ii) or any of clauses (iv) through
(vi) of Section 3.05(b) out of general collections on the Mortgage Loans and any
REO Properties on deposit in the Distribution Account; provided, that for
purposes of the allocations contemplated by Section 4.04 no such expense shall
be deemed to have been incurred by the Trust Fund until such time as the payment
thereof is actually made from the Certificate Account or the Distribution
Account, as the case may be.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to an ARD Mortgage Loan,
the date upon which such ARD Mortgage Loan commences accruing interest at the
Revised Rate.
"Appraisal": An appraisal prepared by an Independent Appraiser with
at least five years experience in properties of like kind and in the same area
reasonably acceptable to the Master Servicer or Special Servicer, as applicable,
prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, an appraisal meeting the requirements of clause (b)(i)(A)
or (b)(i)(B) in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the Appraised Value of the
related Mortgaged Property as determined (A) by one or more Appraisals with
respect to any Mortgage Loan with an outstanding principal balance equal to or
in excess of $2,000,000 (the costs of which shall be paid by the Master Servicer
or, if required by Section 3.03(c), the Trustee as a Servicing Advance), and (B)
by an internal valuation performed by the Special Servicer with respect to any
Mortgage Loan with an outstanding principal balance less than $2,000,000, over
(ii) the sum of, as of the Due Date occurring in the month of such
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<PAGE>
Distribution Date, (1) to the extent not previously advanced by the
Master Servicer or the Trustee, as applicable, all unpaid interest on such
Mortgage Loan at a per annum rate equal to its Mortgage Rate, (2) all
unreimbursed Advances and interest thereon at the Reimbursement Rate in respect
of such Mortgage Loan, (3) all currently due and unpaid real estate taxes,
assessments, insurance premiums and ground rents and all other amounts due and
unpaid with respect to such Mortgage Loan, net of any amounts currently escrowed
for such amounts (which taxes, premiums, ground rents and other amounts have not
been subject to an Advance by the Master Servicer or the Trustee, as applicable)
and (4) all accrued and unpaid Special Servicing Fees; provided, however, that,
if the Special Servicer has not received the appraisal referred to in clause
(b)(i)(A) or (b)(i)(B) above within 60 days after the occurrence of an Appraisal
Reduction Event as required under Section 3.09(i), then, without limiting the
Special Servicer's obligation to order and obtain such Appraisal, the amount of
the Appraisal Reduction shall be deemed to be an amount equal to 35% of the
current Stated Principal Balance of the related Mortgage Loan until such time as
such Appraisal is received, at which time the amount of the Appraisal Reduction
shall be adjusted to reflect such Appraisal.
"Appraisal Reduction Amount": With respect to any Distribution Date,
(i) (when used in order to determine the Appraisal Reduction Amount on an
aggregate basis) an amount equal to the product of (a) one twelfth of the
Pass-Through Rate for each Class of Certificates to which an Appraisal Reduction
is allocated and (b) the sum of all Appraisal Reductions with respect to such
Distribution Date or (ii) (when used in order to determine the Appraisal
Reduction Amount on a Mortgage Loan-by-Mortgage Loan basis) with respect to each
Mortgage Loan for such Distribution Date, an amount equal to the product of (a)
one twelfth of the Pass-Through Rate for each Class of Certificates to which an
Appraisal Reduction is allocated and (b) the Appraisal Reduction with respect to
such Mortgage Loan with respect to such Distribution Date. Solely for purposes
of calculating the Appraisal Reduction Amount, the aggregate Appraisal Reduction
will be allocated by the Trustee on each Distribution Date to the Class K, Class
J, Class H, Class G, Class F, Class E, Class D, Class C and Class B
Certificates, in that order, up to the amount of their respective Certificate
Principal Balance. On any Distribution Date, an Appraisal Reduction that
otherwise would be allocated to a Class of Certificates will be allocated to the
next most subordinate Class to the extent that the Certificate Principal Balance
for such Class of Certificates (prior to taking the Appraisal Reduction into
account) is less than the aggregate Appraisal Reduction for such Distribution
Date. The allocation referred to in the previous two sentences will not affect
the Class Principal Balance of any Class of Certificates nor have any effect on
determining the Controlling Class Representative.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 90 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
30 days after the Maturity Date of any Balloon Loan if the related Balloon
Payment was not made on such date; (iv) the date on which a reduction in the
amount of Monthly Payments on such Mortgage Loan, or a change in any other
material economic term of such Mortgage Loan (other than an extension of the
Maturity Date that results from a modification of such Mortgage Loan by the
Special
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<PAGE>
Servicer becomes effective as a result of a modification of such Mortgage Loan
by the Special Servicer, (v) the date on which a receiver has been appointed,
(vi) the date on which the related Mortgagor declares bankruptcy and (vii)
immediately after a Mortgage Loan becomes an REO Loan; provided, however, that
an Appraisal Reduction Event shall not occur at any time when the aggregate
Certificate Balances of all Classes of Certificates (other than the Class A-1
and Class A-2 Certificates) have been reduced to zero. The Special Servicer
shall notify the Master Servicer promptly upon the occurrence of any of the
foregoing events.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal or update thereof
that is contained in the related Servicing File (which may be an update of the
preceding Appraisal that is not a letter update but includes a current
assessment of relevant market conditions).
"ARD Mortgage Loans": The Mortgage Loans noted as such on the
Mortgage Loan Schedule, which Mortgage Loans substantially fully amortize
through their respective remaining terms to maturity, but provide that if the
unamortized principal amount thereof is not repaid on a specified date prior to
maturity set forth in the related Mortgage Note, the Mortgage Loan will accrue
at a higher interest rate the collection of which will be limited as hereinafter
provided in this Agreement.
"Asset Status Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage
Loan following its maturity date (provided that such Mortgage Loan has not been
paid in full on or before such date and no other Liquidation Event has occurred
in respect thereof) and for any subsequent Due Date therefor as of which such
Mortgage Loan remains outstanding and part of the Trust Fund, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the Scheduled Payment that would have been due in
respect of such Mortgage Loan on such Due Date if it had been required to
continue to pay in accordance with the amortization schedule in effect prior to
its maturity date and without regard to the occurrence of its maturity date.
With respect to any REO Loan, for any Due Date therefor as of which the related
REO Property remains part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Scheduled Payment that would have been due in respect of the
predecessor Mortgage Loan on such Due Date had it remained outstanding (or, if
the predecessor Mortgage Loan was a Balloon Mortgage Loan and such Due Date
coincides with or follows what had been its Stated Maturity Date, the Assumed
Scheduled Payment that would have been deemed due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12.
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<PAGE>
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to, without duplication, (a) the sum of (i) the aggregate
of the amounts on deposit in the Certificate Account and the Distribution
Account as of the close of business on the related Determination Date and the
amounts collected by or on behalf of the Master Servicer as of the close of
business on such Determination Date and required to be deposited in the
Certificate Account, (ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account
during the month of such Distribution Date, on or prior to the P&I Advance Date
in such month, pursuant to Section 3.16(c), (iv) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.19 in connection with Prepayment Interest Shortfalls, and
(v) with respect to the Distribution Date occurring in March, the Withheld
Amount held pursuant to Section 3.25, in all cases net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
amounts payable or reimbursable to any Person from (A) the Certificate Account
pursuant to clauses (ii)-(xviii) of Section 3.05(a) or (B) the Distribution
Account pursuant to clauses (ii) - (vii) of Section 3.05(b), (iii) Prepayment
Premiums, (iv) any amounts deposited in the Certificate Account or the
Distribution Account in error, and (v) any amounts representing Additional
Interest.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Scheduled Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Columbia, Maryland,
Minneapolis, Minnesota, or the cities in which the Corporate Trust Office of the
Trustee or the offices of the Master Servicer are located, are authorized or
obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
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"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 1999-C1, as executed by the Certificate Registrar and
authenticated and delivered hereunder by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "ORIX Real
Estate Capital Markets, LLC, as Master Servicer for Norwest Bank Minnesota,
National Association, as Trustee, on behalf of and in trust for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1999-C1." The Certificate Account shall be an asset of
REMIC I.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Sequential Pay Certificates, the amount of Mortgage
Deferred Interest allocated to such Class pursuant to Section 4.07(a).
"Certificate Factor": With respect to any Class of Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then current
Class Principal Balance of such Class or, in the case of the Class IO
Certificates, the sum of the Component Notional Amounts, and the denominator of
which is the related Original Class Principal Balance or, in the case of the
Class IO Certificates, the sum of the Original Component Notional Amounts.
"Certificate Notional Amount": The sum of the Component Notional
Amounts with respect to each of the Components.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Certificate for any purpose hereof and (ii) solely for the purposes of giving
any consent, approval or waiver pursuant to this Agreement that relates to any
of the Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special
Servicer, or the Trustee in its respective capacity as such (except with respect
to amendments referred to in Sections 3.20(d) and 11.01 hereof and any consent,
approval or waiver required or permitted to be made by the Majority Subordinate
Certificateholder), any Certificate registered in the name of
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<PAGE>
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, or the Trustee, as the case may be, or any Certificate registered in
the name of any of its Affiliates, shall be deemed not to be outstanding, and
the Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained; provided, however, that, except with respect to increasing the Special
Servicer's compensation or reducing the scope of its responsibilities hereunder,
such restrictions will not apply to the exercise by the Special Servicer of any
rights it may have as a member of the Controlling Class or to the exercise by
the Controlling Class Representative of its rights even if such
Certificateholder is an Affiliate of the Master Servicer or Special Servicer.
Notwithstanding anything herein to the contrary, so long as there is no Event of
Default with respect to the Master Servicer or the Special Servicer, the Master
Servicer, Special Servicer and any Affiliates thereof shall be entitled to
exercise such Voting Rights with respect to any issue which could reasonably be
believed to adversely affect such party's compensation or increase its
obligations or liabilities hereunder. The Certificate Registrar shall be
entitled to request and rely upon a certificate of the Depositor, the Master
Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
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"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class IO Certificate": Any one of the Certificates with a "Class
IO" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of the aggregate of the Components,
each of which shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class J Certificate": Any of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class Principal Balance": As of the Closing Date, the Class
Principal Balance of each Class of Sequential Pay Certificates shall equal the
Original Class Principal Balance thereof. On each Distribution Date, the Class
Principal Balance of each such Class of Certificates shall be increased by the
amount of Certificate Deferred Interest allocated to such Class of Certificates
on such Distribution Date pursuant to Section 4.07(a) and shall be reduced by
the amount of any distributions of principal made thereon on such Distribution
Date pursuant to Section 4.01 or 9.01, as applicable, and shall be further
reduced by the amount of any Realized Losses and Additional Trust Fund Expenses
allocated thereto on such Distribution Date pursuant to Section 4.04(a).
Distributions in respect of a reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates shall not constitute distributions of principal and shall not
result in reduction of the related Class Principal Balance.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
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"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit
A-15 attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Closing Date": November 4, 1999.
"CMSA Loan Periodic Update Report": The monthly report in the "CMSA
loan file" format substantially containing the information called for therein
for the Mortgage Loans, a form of which is attached hereto as Exhibit U.
"CMSA Property File Report": The monthly report in the "CMSA
property file" format containing the information called for therein for each
Mortgaged Property, a form of which is attached hereto as Exhibit L, which for
each Distribution Date shall set forth certain information set forth therein as
of the end of the preceding calendar month.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing on the day immediately following the Determination Date for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-Off Date) and ending on and
including the related Determination Date.
"College Square Loan": as defined in Section 3.20(m).
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit M attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgage Loan or the related Mortgaged Property,
as of the last day of the calendar month immediately preceding the preparation
of such report, for (i) the most current available year-to-date, (ii) the
previous two full fiscal years, and (iii) the "base year" (representing the
original analysis of information used as of the Cut-Off Date). For the purposes
of the Master Servicer's production of any such report that is required to state
information for any period prior to the Cut-Off Date, the Master Servicer may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Seller.
"Component": Each of the eleven Components of the Class IO
Certificates, and collectively, the "Components," each evidencing a separate
"regular interest" in REMIC III for purposes of the REMIC Provisions and
corresponding to a Class of Sequential Pay Certificates.
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"Component Notional Amount": With respect to each Component and any
Distribution Date, an amount equal to the Class Principal Balance of its
corresponding Class of Sequential Pay Certificates as of such Distribution Date.
"Control Person": A "control" person within the meaning of the
Securities Act.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates outstanding (a) which bears the latest alphabetical
Class designation and (b) the Class Principal Balance of which is greater than
20% of the Original Class Principal Balance thereof; provided, however, that if
no such Class of Certificates has a Class Principal Balance greater than 20% of
its Original Class Balance, the Controlling Class shall be the Class of
Sequential Pay Certificates bearing the latest alphabetical Class designation.
With respect to determining the Controlling Class, the Class A-1 Certificates
and Class A-2 Certificates shall be deemed to be a single Class of Certificates.
"Controlling Class Representative": as defined in Section 6.11.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement and with respect to Certificate Transfer Services
shall be administered, which office at the date of the execution of this
Agreement is located at Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota 55479-0113, Attention: Corporate Trust Services (CMBS) -- Merrill
Lynch Mortgage Investors, Inc., Series 1999-C1, and (ii) for all other purposes,
11000 Broken Land Parkway, Columbia, Maryland 21044-3562, Attn: Corporate Trust
Services (CMBS) -- Merrill Lynch Mortgage Investors, Inc., Series 1999-C1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the proviso to the definition of "Specially Serviced Mortgage Loan".
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of a
Depositor or the Mortgage Loan Seller. If no such custodian has been appointed
or if such custodian has been so appointed, but the Trustee shall have
terminated such appointment, then the Trustee shall be the Custodian.
"Cut-Off Date": With respect to Mortgage Loans whose Due Dates occur
on the fifth of the month, November 5, 1999, and with respect to all other
Mortgage Loans, November 1, 1999.
"Cut-Off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-Off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Scheduled Payments due on or before
such date, whether or not received.
"DCR": Duff & Phelps Credit Rating Co. or its successor in interest.
If neither DCR nor any successor remains in existence, "DCR" shall be deemed to
refer to such other
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nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given in
writing to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of DCR herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan) generated by
the related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve times the
amount of the Monthly Payment in effect for such Mortgage Loan as of such date
of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent in
an amount equal to at least two Monthly Payments (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon Payment,
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Master Servicer or the Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan,
non-callable United States Treasury obligations (or obligations guaranteed by
the full faith and credit of the United States) which shall consist of
"government securities" within the meaning of Treas. Regs. Section
1.860G-2(a)(8)(i), required or permitted to be pledged in lieu of prepayment
pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan
on the Mortgage Loan Schedule which permits the related Mortgagor to pledge
Defeasance Collateral to the holder of such Mortgage Loan in lieu of prepayment.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit P attached hereto setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more, were
current but were Specially Serviced Mortgage Loans or were in foreclosure but
were not REO Property.
"Depositor": Merrill Lynch Mortgage Investors, Inc. or its successor
in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository, for
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purposes of registering those Certificates that are to be Book-Entry
Certificates, is Cede & Co. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
tenth day of the month in which such Distribution Date occurs, or if such tenth
day is not a Business Day, the immediately preceding Business Day.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Special Servicer or any Sub-Servicer on
behalf of the Trust Fund, shall not be considered to Directly Operate an REO
Property solely because such Special Servicer or Sub-Servicer establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs or capital expenditures with respect
to such REO Property.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of a Residual Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates for any Distribution Date, the Accrued Certificate Interest
in respect of such Class of Certificates for such Distribution Date, reduced (to
not less than zero) by the sum of (a) the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a decimal, the numerator of which is the Accrued
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Certificate Interest in respect of such Class of Certificates for such
Distribution Date, and the denominator of which is the aggregate Accrued
Certificate Interest in respect of all the Classes of Regular Certificates for
such Distribution Date, and (b) with respect to each such Class (other than the
Class IO Certificates), such Class' share of any Certificate Deferred Interest
allocated in accordance with Section 4.07(a).
"Distribution Account": The segregated account or accounts created
and maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "Norwest Bank Minnesota, National Association,
as Trustee, in trust for the registered Holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1999-C1." The
Distribution Account shall be an Asset of REMIC I.
"Distribution Date": The later of (a) the 15th day of any month, or
if such 15th day is not a Business Day, the Business Day immediately following
and (b) the fourth Business Day following the related Determination Date,
commencing on December 15, 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company (including the
Trustee), and (a) with respect to deposits held for 30 days or more in such
account, the long-term deposit or unsecured debt obligations of which are rated
"AA" by Standard & Poor's, "A" by DCR (or if not rated by DCR, then rated
comparably by two nationally recognized statistical ratings organizations) and
"Aa3" by Moody's (if then rated by Moody's) or, in each such case, such lower
rating as will not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in writing by the Rating
Agencies, at any time such funds are on deposit therein, or (b) with respect to
deposits held for less than 30 days in such account, the short-term deposits of
which are rated P-1 by Moody's (if then rated by Moody's), D-1 by DCR (or if not
rated by DCR, then rated comparably by two nationally recognized statistical
ratings organizations) and A-1 by Standard & Poor's or, in each such case, such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies at any time such funds are on deposit therein; or (ii) a
segregated trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depository institution or
trust company, is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 C.F.R. ss. 9.10(b), having in either case a
combined capital and surplus
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of at least $50,000,000 and subject to supervision or examination by federal or
state authority, or the use of such account would not, in and of itself, cause a
qualification, downgrading or withdrawal of the then current rating assigned to
any Class of Certificates, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of (a) (i) Chapter 5 of the FNMA Multifamily Guide or
any successor provisions covering the same subject matter, in the case of
Specially Serviced Mortgage Loans as to which the related Mortgaged Property is
a multifamily property, or (ii) the Servicing Standard, in the case of any other
Specially Serviced Mortgage Loans, and (b) the American Society for Testing and
Materials.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property, including amounts for deposit to
any reserve account.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
by the Master Servicer or the Special Servicer pursuant to Section 3.18(b) or by
the Depositor, the Special Servicer or the Master Servicer pursuant to Section
9.01), that there has been a recovery of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the Special
Servicer has determined, in accordance with the Servicing Standard, will be
ultimately recoverable.
"FNMA": Federal National Mortgage Association or any successor.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Historical Loan Modification Report": A report substantially
containing the content described in Exhibit Q attached hereto, setting forth,
among other things, those Mortgage
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Loans which, as of the close of business on the Determination Date immediately
preceding the preparation of such report, have been modified pursuant to this
Agreement (i) during the related Collection Period and (ii) since the Cut-Off
Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing
the content described in Exhibit R attached hereto, setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Controlling Class
Representative, the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, the Trustee and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Controlling Class Representative, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee or
any Affiliate thereof, and (iii) is not connected with the Controlling Class
Representative, the Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the Trustee or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Controlling Class Representative, the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Controlling Class Representative,
the Depositor, the Master Servicer, the Special Servicer, the Trustee or any
Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, who is,
if the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and who has a minimum
of five years experience in the subject property type and market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion
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of Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, delivered to the Trustee), so long as
REMIC I does not receive or derive any income from such Person and provided that
the relationship between such Person and REMIC I is at arm's length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5), or any other Person
upon receipt by the Trustee of an Opinion of Counsel, which shall be at no
expense to the Master Servicer, the Special Servicer, the Trustee or the Trust
Fund, to the effect that the taking of any action in respect of any REO Property
by such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor will not cause such
REO Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy, or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan or
the related Mortgaged Property.
"Insurance and Condemnation Proceeds": Proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgage Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property, released to the Mortgagor,
or any tenants or ground lessors, as the case may be, pursuant to the terms of
the related Mortgage or lease, in accordance with the Servicing Standard.
"Interest Reserve Account": The trust account created and maintained
by the Trustee pursuant to Section 3.25 on behalf of the Certificateholders,
into which the amounts set forth in Section 3.25 shall be deposited directly,
and which must be an Eligible Account. The Interest Reserve Account shall be an
asset of REMIC I.
"Interested Person": The Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, the Trustee, any Holder of a Certificate,
or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the applicable provisions of the Code and Treasury
Regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than default interest or
late payment fees, whether as payments, Insurance and Condemnation Proceeds,
Liquidation Proceeds or otherwise, which represent late collections of the
principal and/or interest portions of a Scheduled Payment (other than a Balloon
Payment) or an Assumed Scheduled Payment in respect of such Mortgage Loan due or
deemed due (without regard to any acceleration of amounts due thereunder by
reason of default) on a Due Date in a previous Collection Period, or on a Due
Date coinciding with or preceding the Cut-Off Date, and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property during any Collection Period, whether as Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of an
Assumed Scheduled Payment in respect of the predecessor
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Mortgage Loan or of an Assumed Scheduled Payment in respect of such REO Loan due
or deemed due (without regard to any acceleration of amounts due thereunder by
reason of default) on a Due Date in a previous Collection Period and not
previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement; or (iv) such Mortgage Loan is purchased by the Master
Servicer or the Special Servicer pursuant to Section 3.18(b) or by the
Depositor, the Special Servicer or the Master Servicer pursuant to Section 9.01.
With respect to any REO Property (and the related REO Loan), any of the
following events: (i) a Final Recovery Determination is made with respect to
such REO Property; or (ii) such REO Property is purchased by the Depositor, the
Special Servicer or the Master Servicer pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan, with respect to which the
Special Servicer receives a full, partial or discounted payoff from the related
Mortgagor or any Liquidation Proceeds with respect thereto, equal to the product
of the Liquidation Fee Rate and the proceeds of such full, partial or discounted
payoff or the Liquidation Proceeds (net of the costs and expenses associated
with the related liquidation) related to such liquidated Specially Serviced
Mortgage Loan, as the case may be; provided, however, that no Liquidation Fee
shall be payable with respect to clauses (iv)-(vi) and (viii) of the definition
of Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to 1%.
"Liquidation Proceeds": All cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received by the Master Servicer or the
Special Servicer in connection with: (i) the taking of all or a part of a
Mortgaged Property by exercise of the power of eminent domain or condemnation,
subject, however, to the rights of any tenants and ground lessors, as the case
may be, and the terms of the related Mortgage; (ii) the liquidation of a
Mortgaged Property or other collateral constituting security for a defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and the terms and conditions
of the related Mortgage Note and Mortgage; (iii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iv) the purchase of a
Defaulted Mortgage Loan by the Master Servicer or the Special Servicer pursuant
to Section 3.18(b); (v) the repurchase of a Mortgage Loan by the applicable
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement;
(vi) the purchase of a Mortgage Loan or REO Property by the Depositor, the
Special Servicer or the Master Servicer pursuant to Section 9.01, (vii) the sale
of a Defaulted Mortgage Loan pursuant to Section 3.18(c), or (viii) the
substitution of Qualified Substitute Mortgage Loan for a deleted Mortgage Loan.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
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"Majority Subordinate Certificateholder": As of any date of
determination, any Holder or Holders of Certificates entitled to greater than
50% of the Voting Rights allocated to the Controlling Class. With respect to
determining the Majority Subordinate Certificateholder, the Class A-1 and Class
A-2 Certificates shall be deemed to be a single Class of Certificates, with such
Voting Rights allocated among the Holders of Certificates of such Classes in
proportion to the respective Certificate Principal Balances of such Certificates
as of such date of determination.
"Master Servicer": ORIX Real Estate Capital Markets, LLC, its
successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": The fee payable to the Master Servicer
pursuant to the first paragraph of Section 3.11(a).
"Master Servicing Fee Rate": With respect to each ORIX Loan, 0%, and
with respect to each other Mortgage Loan, the per annum rate set forth for such
Mortgage Loan under the column "Master Servicing Fee" on the Mortgage Loan
Schedule.
"Merrill Lynch": Merrill Lynch, Pierce, Fenner & Smith Incorporated
or its successor in interest.
"Monthly Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled monthly payment of principal and interest or interest only
on such Mortgage Loan, including any Balloon Payment, that is actually payable
by the related Mortgagor from time to time under the terms of the related
Mortgage Note (as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or by reason of
a modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given in writing to the Trustee, the Master Servicer and
the Special Servicer, and specific ratings of Moody's Investors Service, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the rate at which interest accrues on such Mortgage Loan,
the excess, if any, of (a) interest accrued on the Stated Principal Balance
thereof during the one-month interest accrual period set forth in the related
Mortgage Note at the related rate of accrual over (b) the interest portion of
the related Monthly Payment, as so modified or reduced, or, if applicable, the
Assumed Scheduled Payment, as so modified or reduced, due on such Due Date, to
the extent such excess has been added to the outstanding principal balance of
such Mortgage Loan.
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"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note endorsed (without
recourse, representation or warranty, express or implied) to
the order of Norwest Bank Minnesota, National Association, as
trustee for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series
1999-C1;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof, in each case with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any
intervening assignment thereof, in each case with evidence of
recording indicated thereon;
(iv) (a) an original executed assignment of the Mortgage in
recordable form, (b) any related assignment of Assignment of
Leases (if such item is a document separate from the Mortgage)
in recordable form and (c) any other recorded document
relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of Norwest Bank Minnesota, National
Association as trustee for the registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1999-C1;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan otherwise included in the Mortgage File, in
favor of Norwest Bank Minnesota, National Association, as
trustee for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series
1999-C1;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provision of the Mortgage
or Mortgage Note have been modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with the
origination of such Mortgage Loan, or, if such policy has not
been issued, an irrevocable, binding commitment to issue such
title insurance policy; and
(viii) any filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of
any assignee prior to the Trustee (but only to the extent the
Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Mortgage
Loan Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3
assignment, as appropriate, in favor of
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Norwest Bank Minnesota, National Association, as trustee for
the registered holders of Merrill Lynch Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1999-C1 in
recordable form.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(vi) of this definition, shall be deemed to include only such documents to the
extent a Responsible Officer of the Trustee or Custodian has actual knowledge of
their existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage
Loan Schedule and any Qualified Substitute Mortgage Loan from time to time held
in the Trust Fund. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File.
"Mortgage Loan Purchase Agreements": Those certain Mortgage Loan
Purchase Agreements, each dated as of November 1, 1999, between the Depositor
and the respective Mortgage Loan Seller and relating to the transfer of the
related Mortgage Loans to the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B
and in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the Cut-Off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate in effect at origination and as of the
Cut-Off Date;
(vi) the (A) remaining term to stated maturity and (B) the Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) whether the Mortgage Loan is secured by a Mortgage on a
leasehold interest;
(ix) whether the Mortgage Loan is an ARD Mortgage Loan and if so,
the Anticipated Repayment Date and the Revised Rate;
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(x) the Master Servicing Fee Rate and Retained Fee Rate;
(xi) the Mortgage Loan Seller;
(xii) the related Sub-Servicer;
(xiii) whether such Mortgage Loan is a Defeasance Loan;
(xiv) whether the interest accrual method for such Mortgage Loan is
actual/360 or 30/360; and
(xv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan.
"Mortgage Loan Seller": Each of (i) Merrill Lynch Mortgage Capital
Inc. or its successor in interest, (ii) Paine Webber Real Estate Securities Inc.
or its successor in interest, or (iii) ORIX Real Estate Capital Markets, LLC or
its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate ": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Maturity Date but giving effect
to any modification thereof as contemplated by Section 3.20; and (iii) any REO
Loan, the annualized rate described in clause (i) or (ii), as applicable, above
determined as if the predecessor Mortgage Loan had remained outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
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"Net Investment Earnings": With respect to the Certificate Account
or the REO Account (if any) for any Collection Period, the amount, if any, by
which the aggregate of all interest and other income realized during such
Collection Period on funds held in such account, exceeds the aggregate of all
losses of principal, if any, incurred during such Collection Period in
connection with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account or
the REO Account (if any) for any Collection Period, the amount by which the
aggregate of all losses of principal, if any, incurred during such Collection
Period in connection with the investment of funds held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of (i) the Trustee Fee Rate, (ii) the applicable
Master Servicing Fee Rate and (iii) the applicable Retained Fee Rate; provided,
that if the related Mortgage Rate has been modified in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, the Net Mortgage Rate for such Mortgage Loan or REO
Loan shall be calculated without regard to such event; and provided further,
that if interest in respect of such Mortgage Loan or REO Loan is not accrued on
the basis of a 360-day year consisting of twelve 30-day months, then, solely for
purposes of determining the REMIC I Remittance Rate for the related REMIC I
Regular Interest and thereby calculating the Weighted Average Effective REMIC I
Remittance Rate, the REMIC II Remittance Rate for each Class of the REMIC II
Regular Interests other than the REMIC II Class ARD Regular Interest and the
Pass-Through Rate for each of the Components for any Distribution Date, such Net
Mortgage Rate will, to the extent appropriate, be adjusted from accrual period
to accrual period to compensate for such difference, except for the accrual
periods (A) preceding the Due Dates that occur in January and February in any
year which is not a leap year or preceding the Due Date that occurs in February
in any year which is a leap year, and (B) preceding the Due Date in March in any
year.
"Net Operating Income": As defined in and determined in accordance
with the provisions of Exhibit E-1 attached hereto.
"New Lease": Any lease of REO Property entered into on behalf of
REMIC I, including any lease renewed, modified or extended on behalf of REMIC I
if REMIC I has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Master
Servicer, substantially containing the content described in Exhibit S attached
hereto.
"Nonrecoverable Advance": Any P&I Advance or Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO Loan
which, in the judgment of the Master Servicer or the Trustee, as applicable,
will not be ultimately recoverable, together with any accrued and unpaid
interest thereon, from Late Collections or any other recovery on or in respect
of such Mortgage Loan or REO Loan. The determination by the Master Servicer or
the Trustee, as applicable, that it has made a Nonrecoverable Advance or that
any
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proposed P&I Advance or Servicing Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Depositor, in the case of the Master Servicer, and to the
Depositor, in the case of the Trustee. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Master
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall include but shall not be limited to information, to the extent
available, such as related income and expense statements, rent rolls, occupancy
status and property inspections, and shall include an Appraisal of the related
Mortgage Loan or Mortgaged Property done within the last twelve months (the cost
of which Appraisal shall be advanced by the Master Servicer as a Servicing
Advance). The Trustee shall be entitled to conclusively rely on the Master
Servicer's determination that a P&I Advance or Servicing Advance is or would be
nonrecoverable.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class G, Class H, Class J, Class K, Class R-I, Class R-II or
Class R-III Certificate.
"Non-United States Person": Any Person other than a United States
Person.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Operating Statement Analysis Report": With respect to each Mortgage
Loan and REO Property, a report substantially containing the content described
in Exhibit T attached hereto.
"Opinion of Counsel": A written opinion of counsel (which counsel
shall be Independent of the Depositor, the Master Servicer and the Special
Servicer and the Controlling Class Representative) acceptable to and delivered
to the Trustee or the Master Servicer, as the case may be.
"Original Component Notional Amount": With respect to each
Component, the initial Component Notional Amount thereof as of the Closing Date
equal to the Original Class Principal Balance of the corresponding Class of
Sequential Pay Certificates as of the Closing Date.
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"ORIX": ORIX Real Estate Capital Markets, LLC.
"ORIX Loans": Each of the Mortgage Loans purchased by the Depositor
from ORIX Real Estate Capital Markets, LLC., as indicated on the Mortgage Loan
Schedule.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
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"Pass-Through Rate": For any Distribution Date, with respect to:
(i) the Class A-1 and Class A-2 Certificates, 7.37% and 7.56% ,
respectively;
(ii) the Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates, the lesser of (a)
7.71%, 7.85%, 7.85%, 7.85%, 7.85%, 6.71%, 6.71%, 7.21% and
7.21%, respectively, and (b) the Weighted Average Effective
REMIC I Remittance Rate for such Distribution Date; and
(iii) Component IO-A1, Component IO-A2, Component IO-B, Component
IO-C, Component IO-D , Component IO-E, Component IO-F,
Component IO-G, Component IO-H, Component IO-J and Component
IO-K, (a) the Weighted Average Effective REMIC I Remittance
Rate for such Distribution Date minus (b) 7.37%, 7.56%, 7.71%,
7.85%, 7.85%, 7.85%, 7.85%, 6.71%, 6.71%, 7.21% and 7.21%,
respectively (but not less than zero).
"PaineWebber": PaineWebber Incorporated.
"Paying Agent": The paying agent appointed pursuant to Section 8.13.
If no such paying agent has been appointed or if such paying agent has been so
appointed, but the Trustee shall have terminated such appointment, then the
Trustee shall be the Paying Agent.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent late payment charges or default interest, other than a Yield
Maintenance Charge, Percentage Premium or Additional Interest.
"Percentage Interest": With respect to any Sequential Pay
Certificate, a percentage, the numerator of which is the initial Certificate
Principal Balance of such Certificate as of the Closing Date, as specified on
the face thereof, and the denominator of which is the Original Class Principal
Balance of the relevant Class. With respect to any Class IO Certificate, a
percentage, the numerator of which is the initial Certificate Notional Amount of
such Certificate as of the Closing Date, as specified on the face thereof, and
the denominator of which is the aggregate of the Original Class Principal
Balances of the Sequential Pay Certificates. With respect to a Residual
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Percentage Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
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"Permitted Investments": Any one or more of the following
obligations or securities having maturities of 365 days or less (including
obligations or securities of the Trustee if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided such
obligations are backed by the full faith and credit of the
United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. If
rated, such an obligation should not have an "r" highlighter
affixed to its rating by Standard & Poor's. Interest may
either be fixed or variable. Interest should be tied to a
single interest rate index plus a single fixed spread (if
any), and move proportionately with that index. Such
Investments should not be subject to liquidation prior to
maturity. Such investments should not be relied upon for a
fixed yield;
(ii) repurchase obligations with respect to any security described
in clause (i) above (having original maturities of not more
than 365 days), provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such
obligations are rated in the highest short-term rating
category of each of DCR and Standard & Poor's or such lower
rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies. In addition,
any such item should not have an "r" highlighter affixed to
its rating by Standard & Poor's, and its terms should have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable, and should be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index. Such Investments should not be subject to
liquidation prior to maturity. Such investments should not be
relied upon for a fixed yield;
(iii) unsecured certificates of deposit, time deposits, demand
deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state
thereof (having original maturities of not more than 365
days), the short-term obligations of which are rated in the
highest rating category of each of DCR and Standard & Poor's
or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies.
In addition, any such item should not have an "r" highlighter
affixed to its rating by Standard & Poor's, and its terms
should have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. Interest may
either be fixed or variable, and should be tied to a single
interest rate index plus a single fixed spread (if
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any), and move proportionately with that index. Such
investments should not be relied upon for a fixed yield;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of
the United States or any state thereof which is rated in the
highest short-term rating category of each of DCR and Standard
& Poor's or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the
Rating Agencies. The commercial paper should not have an "r"
highlighter affixed to its rating by Standard & Poor's and by
its terms should have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. Interest should be tied to a
single interest rate index plus a single fixed spread (if
any), and move proportionately with that index. Such
Investments should not be subject to liquidation prior to
maturity. Such investments should not be relied upon for a
fixed yield;
(v) units of money market funds rated in the highest rating
category of DCR and AAAm or AAAm-G by Standard & Poor's (or
such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies)
and which seek to maintain a constant net asset value;
(vi) any other debt obligation (a) with respect to which each
Rating Agency shall have confirmed in writing to the Master
Servicer, the Special Servicer and the Trustee that such
investment would not result in a downgrading or withdrawal or,
with respect to Standard and Poor's, qualification of the
ratings then assigned to the Certificates and (b) which
qualifies as a "cash flow investment" pursuant to Section
860G(a)(6) of the Code;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) that no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03(a) and (b).
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"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I, REMIC II or REMIC III, the Holder of Certificates with the largest
Percentage Interest of the related Class of Residual Certificates.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that each ARD Mortgage Loan is assumed to be paid in full on
its Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of the related Trustee Fee, Master Servicing Fee and Retained Fee) accrued
on the amount of such Principal Prepayment during the period from and after such
Due Date, to the extent collected (exclusive of any Prepayment Premium
collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part during any
Collection Period, which Principal Prepayment was applied to such Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period, the amount of
interest (excluding Additional Interest), to the extent not collected from the
related Mortgagor (without regard to any Prepayment Premium that may have been
collected), that would have accrued at a rate per annum equal to the sum of (x)
the Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any Yield Maintenance Charge or Percentage
Premium paid or payable, as the context requires, by a Mortgagor in connection
with a Principal Prepayment.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate," then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Paying Agent and the Special
Servicer in writing of its selection.
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"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) due (to the extent received
or advanced) and any Assumed Scheduled Payments in respect of the
Mortgage Loans for their respective Due Dates occurring during the
related Collection Period;
(b) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) due on or in respect of the
Mortgage Loans for their respective Due Dates occurring before the
related Collection Period (but not before the Cut-Off Date), to the
extent received or advanced during the related Collection Period and
not previously received or advanced; provided that this amount will
not include any Liquidation Proceeds or Insurance and Condemnation
Proceeds;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period (including any
Remaining Cash Flow);
(d) with respect to any Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any
amounts described in clause (d) below) made by or on behalf of the
related Mortgagor during the related Collection Period (including
any Balloon Payment), net of any portion of such payment that
represents a recovery of the principal portion of any Scheduled
Payment (other than a Balloon Payment) due, or the principal portion
of any Assumed Scheduled Payment deemed due, in respect of such
Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(e) the aggregate of all Liquidation Proceeds and Insurance
and Condemnation Proceeds that were received on the Mortgage Loans
during the related Collection Period and that were identified and
applied by the Master Servicer as recoveries of principal of such
Mortgage Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Scheduled
Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Scheduled Payment deemed due, in respect of
the related Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(f) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments in respect of
the related REO Loans for their respective Due Dates occurring
during the related Collection Period;
(g) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance and Condemnation Proceeds and REO
Revenues that were received during the related Collection Period on
such REO Properties and that were identified and applied by the
Master Servicer and/or Special Servicer as recoveries of
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principal of the related REO Loans, in each case net of any portion
of such amounts that represents a recovery of the principal portion
of any Scheduled Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Scheduled Payment deemed due,
in respect of the related REO Loan or the predecessor Mortgage Loan
on a Due Date during or prior to the related Collection Period and
not previously recovered; and
(h) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution
Amount for the immediately preceding Distribution Date, over the
aggregate distributions of principal made on the Certificates on
such immediately preceding Distribution Date pursuant to Section
4.01.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Prospectus": The prospectus dated October 15, 1999, as supplemented
by the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The prospectus supplement dated October 29,
1999 relating to the Registered Certificates.
"Purchase Price": With respect to any Mortgage Loan to be purchased
by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement, by the Master Servicer or the Special Servicer pursuant to Section
3.18(b) or by the Majority Subordinate Certificateholder, the Depositor, the
Special Servicer or the Master Servicer pursuant to Section 9.01 or to be
otherwise sold pursuant to Section 3.18(c), a cash price equal to the
outstanding principal balance of such Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase plus any accrued interest on P&I Advances, (b) all related and
unreimbursed Servicing Advances plus any accrued interest thereon at the
applicable Reimbursement Rate, (c) any reasonable costs and expenses incurred by
the Trust Fund in connection with any such purchase or substitution by a
Mortgage Loan Seller and (d) any other Additional Trust Fund Expenses in respect
of such Mortgage Loan; provided, that the Purchase Price shall not be reduced by
any outstanding P&I Advance. With respect to any REO Property to be sold
pursuant to Section 3.18(c), the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be repurchased pursuant to Section 9.01, the amount calculated in
accordance with the first paragraph thereof in respect of the related REO Loan.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction and that has a "financial strength" rating of at least "BBB" from
Standard & Poor's and "A" from DCR or, if not rated by DCR, a comparable rating
from at least two nationally recognized statistical rating agencies.
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"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) have a remaining term to stated maturity not greater than,
and not more than two years less than, the remaining term to stated maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher than the then current Loan-to-Value Ratio of the deleted Mortgage Loan;
(vii) comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an environmental report with respect to the related Mortgaged Property
which will be delivered as a part of the related Mortgage File; (ix) have an
original Debt Service Coverage Ratio of not less than the original Debt Service
Coverage Ratio of the deleted Mortgage Loan and a current Debt Service Coverage
Ratio of not less than the current Debt Service Coverage Ratio of the deleted
Mortgage Loan; (x) be determined by an Opinion of Counsel to be a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code; (xi)
not have a maturity date after the date two years prior to the Rated Final
Distribution Date; (xii) not be substituted for a deleted Mortgage Loan unless
the Trustee has received prior confirmation in writing by each Rating Agency
that such substitution will not result in the withdrawal, downgrade, or, with
respect to Standard & Poor's, qualification of the rating assigned by the Rating
Agency to any Class of Certificates then rated by the Rating Agency (the cost,
if any, of obtaining such confirmation to be paid by the applicable Mortgage
Loan Seller); (xiii) has a date of origination which is the same as or later
than the Cut-Off Date; (xiv) has been approved by the Controlling Class
Representative in its sole discretion; (xv) not have been previously rejected by
the Controlling Class Representative pursuant to clause (xiv) above; and (xvi)
not be substituted for a deleted Mortgage Loan unless it has been determined by
an Opinion of Counsel that such substitution would not result in the termination
of the REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement. In the
event that one or more mortgage loans are substituted for one or more deleted
Mortgage Loans, then the amounts described in clause (i) shall be determined on
the basis of aggregate principal balances and the rates described in clause (ii)
above and the remaining term to stated maturity referred to in clause (v) above
shall be determined on a weighted average basis. When a Qualified Substitute
Mortgage Loan is substituted for a deleted Mortgage Loan, the Mortgage Loan
Seller shall certify that the Mortgage Loan meets all of the requirements of the
above definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": Solely for purposes of satisfying
Treasury Regulations Section 1.860G-1(a)(4)(iii) and with respect to (i) each
REMIC I Regular Interest, (ii) each REMIC II Regular Interest, (iii) each Class
of Regular Certificates (other than the Class IO Certificates) and (iv) each
Component, November 15, 2031.
"Rating Agency": Each of Standard & Poor's and DCR.
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"Realized Loss": With respect to: (1) each Defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or REO Loan, as the case may be, at the related
Mortgage Rate to but not including the Due Date in the Collection Period in
which the Final Recovery Determination was made, plus (c) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Loan, as the case may be, during the Collection Period in which such Final
Recovery Determination was made; (2) each Defaulted Mortgage Loan as to which
any portion of the principal or previously accrued interest (excluding
Additional Interest) payable thereunder was canceled in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, the amount of such principal or
interest (excluding Additional Interest) so canceled; and (3) each Mortgage Loan
as to which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Monthly Payment due thereon. Each such Realized Loss determined
pursuant to clause (3) above shall be deemed to have been incurred on the Due
Date for each affected Monthly Payment.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class F or Class IO Certificate.
"Regular Certificate": Any REMIC III Certificate other than a Class
R-III Certificate.
"Reimbursement Rate": The rate, compounded monthly, applicable to
the accrual of interest on Servicing Advances in accordance with Section 3.03(d)
and on P&I Advances in accordance with Section 4.03(d), which rate is equal to
the Prime Rate.
"Remaining Cash Flow": With respect to an ARD Mortgage Loan, all
monthly cash flow generated by the related Mortgaged Property in excess of (i)
the Scheduled Payment for a particular Due Date and (ii) operating expenses and
certain other expenses set forth in the related Mortgage Note.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
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"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and consisting of:
(i) the Mortgage Loans as from time to time are subject to this Agreement and
all payments under and proceeds of such Mortgage Loans received (but excluding
(W) any Additional Interest on the ARD Mortgage Loans, (X) payments of scheduled
principal and interest due on or before the Cut-Off Date and principal
prepayments received on or before November 1, 1999, (Y) any other interest
payable on the Mortgage Loans which is attributable to any portion of a Master
Servicing Fee, Special Servicing Fee or Retained Fee that is deemed to be in
excess of the amount which constitutes reasonable servicing compensation within
the meaning of the REMIC Provisions, and (Z) the Reserve Funds in the Reserve
Accounts), together with all documents included in the related Mortgage Files
and any Escrow Payments; (ii) any REO Property acquired in respect of a Mortgage
Loan; (iii) such funds or assets as from time to time are deposited in the
Certificate Account, the Distribution Account, the Additional Interest
Distribution Account, the Interest Reserve Account and, if established, the REO
Account (other than amounts excluded pursuant to clause (i) above); and (iv) the
rights of the Depositor under each of the Mortgage Loan Purchase Agreements.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder with respect to a
specific Mortgage Loan and designated as a "regular interest" in REMIC I, as
described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, the Net Mortgage Rate as of the Cut-Off Date for the Mortgage Loan (or
any successor REO Loan) to which such REMIC I Regular Interest relates.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
REMIC III, as holder of the REMIC II Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the REMIC II Remittance Rate in effect from time to time and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC II Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular
Interest for any Distribution Date, the Weighted Average Effective REMIC I
Remittance Rate for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests and all of the Additional Interest that is payable on
the ARD Mortgage Loans conveyed in trust to the Trustee for the benefit of the
Holders of the REMIC III Certificates pursuant to Section 2.08, with respect to
which a separate REMIC election is to be made.
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"REMIC III Certificate": Any Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class IO, Class J, Class K or Class
R-III Certificate.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury Regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "ORIX Real
Estate Capital Markets, LLC as Special Servicer, in trust for Holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1999-C1." The REO Account shall be an asset of REMIC I.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
provide for monthly payments of principal and/or interest equal to its Assumed
Scheduled Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan). Each REO Loan shall be
deemed to have an initial unpaid principal balance and Stated Principal Balance
equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Scheduled Payments (other than a Balloon Payment), Assumed
Scheduled Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Loan. Collections in respect of each REO Loan (after provision for
amounts to be applied to the payment of, or to be reimbursed to the Trustee
first and then to the Master Servicer and the Special Servicer on a pari passu
basis, for the payment of, the costs of operating, managing and maintaining the
related REO Property or for the reimbursement to the Trustee first and then to
the Master Servicer and the Special Servicer on a pari passu basis for other
related Servicing
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Advances) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt; second, as a recovery of principal of such
REO Loan to the extent of its entire unpaid principal balance; and third, in
accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Master Servicing Fees, Retained Fees and any unreimbursed
Servicing Advances and P&I Advances, together with any interest accrued and
payable to the Master Servicer, the Special Servicer or the Trustee in respect
of such Servicing Advances and P&I Advances in accordance with Sections 3.03(d)
and 4.03(d), shall continue to be payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, in respect of
an REO Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf of the Trust
Fund in the name of the Trustee or its nominee for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a).
"REO Status Report": A report substantially containing the content
described in Exhibit N attached hereto, setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Determination Date immediately preceding the preparation of
such report, (i) the acquisition date of such REO Property and (ii) the value of
the REO Property based on the most recent appraisal or other valuation thereof
available to the Special Servicer as of such Determination Date (including any
prepared internally by the Special Servicer).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for repairs and/or capital improvements to the
related Mortgaged Property.
"Residual Certificate": A Class R-I, Class R-II or Class R-III
Certificate.
"Responsible Officer": When used with respect to the Trustee, any
officer, assistant officer or authorized Person in the Corporate Trust
Department of the Trustee or any
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other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers in
each case having direct responsibility for the administration of this Agreement.
"Retained Fee": The fee payable to ORIX pursuant to the first
paragraph of Section 3.11(a).
"Retained Fee Rate": With respect to each ORIX Loan, the per annum
rate set forth for such Mortgage Loan under the column "Retained Fee" on the
Mortgage Loan Schedule, and with respect to each other Mortgage Loan, 0%.
"Revised Rate": With respect to an ARD Mortgage Loan, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for such ARD Mortgage Loan, as calculated and as set forth in the related
Mortgage Loan documents.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-Off Date as of which it is outstanding, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan that is or
would be, as the case may be, payable by the related Mortgagor on such Due Date
under the terms of the related Mortgage Note as in effect on the Cut-Off Date,
but without regard to (i) any subsequent change in or modification of such terms
in connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20, or (ii) the
application of any Remaining Cash Flow with respect to an ARD Mortgage Loan, and
assuming that each prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2 or Class IO
Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J or Class K
Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees, expenses and fees of
real estate brokers, and Rating Agencies fees in connection with a modification
of a Mortgage Loan pursuant to Section 3.20 that are not paid by the Mortgagor)
incurred by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in connection with the servicing and administering of (a) a Mortgage
Loan in respect of which a default, delinquency or other unanticipated event has
occurred or as to which a default is reasonably foreseeable or (b) an REO
Property, including, but not limited to, the cost of (i) compliance with the
Master Servicer's obligations set forth in Section 3.03(c), (ii) the
preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i) - (iv) of the definition of "Liquidation
Proceeds," (iv) any enforcement or judicial proceedings with
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respect to a Mortgaged Property, including foreclosures and (v) the operation,
leasing, management, maintenance and liquidation of any REO Property.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) in the possession of the Depositor (and
delivered to the Master Servicer or Special Servicer) and relating to the
origination and servicing of any Mortgage Loan, including appraisals, surveys,
engineering reports and environmental reports.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) a payment default shall have occurred on such Mortgage
Loan at its original maturity date (or, with respect to a Monthly
Payment which is a Balloon Payment, as to which the Balloon Payment
is over 30 days past due), or, if the maturity date of such Mortgage
Loan has been extended, a payment default occurs on such Mortgage
Loan at its extended maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60
days or more delinquent; or
(iii) the date upon which the Master Servicer determines that
a payment default has occurred or is imminent and is not likely to
be cured by the related Mortgagor within 60 days; or
(iv) the date upon which a petition is filed in court or
agency or supervisory authority having jurisdiction in the premises
in an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or seeking the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or upon an order being entered for the
winding-up or liquidation of its affairs against the related
Mortgagor; provided, however, that if such appointment, decree or
order is dismissed or such consent revoked within 60 days of being
entered, such Mortgage Loan shall no longer be considered a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto); or
(v) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt,
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marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially
all of its property; or
(vi) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations;
(vii) the date upon which the Master Servicer or Special
Servicer shall have received actual notice of the foreclosure or
proposed foreclosure of any other lien on the Mortgaged Property; or
(viii) a default of which the Master Servicer or Special
Servicer has actual notice (other than a failure by such Mortgagor
to pay principal or interest) and which, in the opinion of the
Master Servicer or Special Servicer, materially and adversely
affects the value of the affected Mortgage Loan or the interests of
the Certificateholders therein has occurred and remained unremedied
for the applicable grace period specified in such Mortgage Loan (or
if no grace period is specified, 60 days).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Servicer": ORIX Real Estate Capital Markets, LLC, its
successor in interest, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan and on the basis of
a 360-day year and the actual number of days in a month.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which a
Servicing Transfer Event has occurred and is continuing; provided that a
Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage
Loan when the Special Servicer has returned the related Mortgage File and the
related Servicing File to the Master Servicer in accordance with the second
paragraph of Section 3.21(a).
"Standard & Poor's": Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc., or its successor in interest. If neither
Standard & Poor's nor any successor remains in existence, "Standard & Poor's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given in writing to the Trustee, the Master
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Servicer and the Special Servicer, and specific ratings of Standard & Poor's
Ratings Services herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by any states of New York,
Illinois, Delaware, Maryland and North Carolina and by any other state or local
taxing authorities as may, by notice to the Trustee, assert jurisdiction over
the trust fund or any portion thereof, or which, according to an Opinion of
Counsel addressed to the Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), an amount equal to the sum of (a) the Cut-Off Date
Balance of such Mortgage Loan (or, in the case of a Qualified Substitute
Mortgage Loan, the unpaid principal balance after application of all principal
payments due on or before the related date of substitution, whether or not
received), plus (b) any Mortgage Deferred Interest added to the principal
balance of such Mortgage Loan on or before the end of the immediately preceding
Collection Period (to the extent not advanced by the Master Servicer or the
Trustee), as reduced on each Distribution Date (to not less than zero) by (i)
all payments (or advances in lieu thereof) and other collections of principal of
such Mortgage Loan (or successor REO Loan) that are due or received, as the case
may be, during the related Collection Period and distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or successor or REO
Loan) during the related Collection Period for such Distribution Date.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date next following the Collection Period in
which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J or Class K Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
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"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the difference between
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution and the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Loans being replaced and the
aggregate Stated Principal Balances of the related Qualified Substitute Mortgage
Loan or Loans.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Temporary
Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable Plurality Residual Certificateholder.
"Tax Returns": With respect to each of the REMICs created hereunder,
the federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
REMIC I, REMIC II and REMIC III due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service under any applicable provisions of federal tax
law or any other governmental taxing authority under applicable State and Local
Tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of REMIC I, REMIC
II and REMIC III, (ii) any interest on the Mortgage Loans which is attributable
to any portion of a Master Servicing Fee, Special Servicing Fee or Retained Fee
that is deemed to be in excess of the amount of such fee that constitutes
reasonable servicing compensation within the meaning of the REMIC Provisions and
(iii) the Reserve Funds in the Reserve Accounts.
"Trustee": Norwest Bank Minnesota, National Association, a national
banking association, its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": For any Distribution Date and each Mortgage Loan and
REO Loan, the amount accrued at the Trustee Fee Rate (calculated on an
actual/360 basis) on the Stated Principal Balance of such Mortgage Loan or REO
Loan, as the case may be, as of the
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immediately preceding Distribution Date (in each case, after giving effect to
the distribution of principal of such Mortgage Loan on such preceding
Distribution Date).
"Trustee Fee Rate": 0.00285% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest as of the
commencement of the Collection Period for such Distribution Date, accrued on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date. With respect to any REMIC II
Regular Interest for any Distribution Date, one month's interest at the REMIC II
Remittance Rate applicable to such REMIC II Regular Interest as of the
commencement of the Collection Period for such Distribution Date, accrued on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to such Distribution Date. Uncertificated Accrued Interest in
respect of any REMIC I Regular Interest or any REMIC II Regular Interest shall
accrue on the basis of a 360-day year consisting of twelve 30-day months.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular Interests for such Distribution Date. With respect to any REMIC
II Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date, reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC II Regular Interests
for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest or any REMIC II Regular Interest outstanding as of any
date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall equal the Cut-Off Date Balance of
the related Mortgage Loan. As of the Cut-Off Date, the Uncertificated Principal
Balance of each REMIC II Regular Interest shall equal the Original Class
Principal Balance of the corresponding Class of Sequential Pay Certificates. On
each Distribution
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Date, the Uncertificated Principal Balance of each REMIC II Regular Interest
shall be reduced by all distributions of principal deemed to have been made
thereon on such Distribution Date pursuant to Section 4.01(i), and shall be
further reduced on such Distribution Date by all Realized Losses and Additional
Trust Fund Expenses deemed to have been allocated thereto on such Distribution
Date pursuant to Section 4.04(b). On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be reduced by all
distributions of principal deemed to have been made in respect of such REMIC I
Regular Interest on such Distribution Date pursuant to Section 4.01(j), and
shall be further reduced on such Distribution Date by such Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(c).
"Underwriter": Merrill Lynch or PaineWebber.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any state or political subdivision thereof
including the District of Columbia (unless, in the case of a partnership,
Treasury Regulations are promulgated that provide otherwise), an estate whose
income is includible in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States Persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section 7701(a) of
the Code.
"USAP": The Uniform Single Audit Program for Mortgage Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Sequential Pay Certificates in proportion to the respective Class
Principal Balances of their Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates, and subject to the restrictions in the definition of
"Certificateholder". The Class IO, Class R-I, Class R-II and Class R-III shall
not have any Voting Rights.
"Watch List": As of each Determination Date a report, substantially
in the form of Exhibit O attached hereto, identifying each Mortgage Loan that is
not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage Ratio of
less than 1.05, (ii) that has a Stated Maturity Date occurring in the next sixty
days, (iii) that is delinquent in its real estate taxes, (iv) for which any
outstanding Advances exist for 30 days or more, (v) that has been a Specially
Serviced Mortgage Loan in the past 90 days, (vi) for which the Debt Service
Coverage Ratio has decreased by more than 25% in the prior 12 months, (vii) for
which any lease relating to more than 25% of the related Mortgaged Property has
expired, been terminated or is in default (viii)
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that is 30 or more days late in making its Monthly Payment three or more times
in the preceding twelve months, (ix) that the related Mortgagor has material
deferred maintenance for the related Mortgaged Property or (x) that is 30 or
more days delinquent.
"Weighted Average Effective REMIC I Remittance Rate": With respect
to any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to eight decimal places, of the respective
REMIC I Remittance Rates in respect of all of the REMIC I Regular Interests as
of the commencement of the related Collection Period, weighted on the basis of
the respective Uncertificated Principal Balances of such REMIC I Regular
Interests outstanding immediately prior to such Distribution Date.
"Withheld Amounts": As defined in Section 3.25(b).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection of interest
and principal, including (i) Monthly Payments, (ii) Balloon Payments and (iii)
payments (other than those included in clause (i) or (ii) of this definition),
received on each Corrected Mortgage Loan for so long as it remains a Corrected
Mortgage Loan.
"Yield Maintenance Charge": With respect to the Mortgage Loans
designated ML-103, ML-111, ML-117, ML-131, ML-134 and ML-152, any payment paid
or payable, as the context requires, on a Mortgage Loan as the result of a
Principal Prepayment thereon, not otherwise due thereon, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on a reinvestment rate equal to the
applicable U.S. Treasury rate in effect on the date of Principal Prepayment
thereof, as set forth in The Wall Street Journal. Any other prepayment premiums,
penalties and fees not so calculated will not be considered "Yield Maintenance
Charges."
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trust Fund, without recourse, for the benefit of the Certificateholders (and for
the benefit of the other parties to this Agreement as their respective interests
may appear) all the right, title and interest of the Depositor, in, to and under
(i) the Mortgage Loans, (ii) each Mortgage Loan Purchase Agreement and (iii) all
other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans and due after the Cut-Off Date. The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer and the Special Servicer),
on or before the Closing Date, the Mortgage File for each Mortgage Loan so
assigned. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by any Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the applicable
Mortgage Loan Purchase Agreement and this Section 2.01 (b).
(c) The Trustee shall, at the Depositor's expense and direction, as
to each Mortgage Loan, promptly (and in any event within 45 days following the
later of the Closing Date or the delivery of such assignments and UCC Financing
Statements to the Custodian) cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate and to the extent timely delivered to
the Custodian in final, recordable form, each assignment of Mortgage, assignment
of Assignment of Leases and any assignment of any other recorded document
relating to the Mortgage Loan otherwise included in the Mortgage File, in favor
of the Trustee referred to in clause (iv) of the definition of "Mortgage File"
and each UCC-2 and UCC-3 assignment in favor of the Trustee and so delivered to
the Custodian and referred to in clause (viii) of the definition of "Mortgage
File." Each such assignment shall reflect that it should be returned by the
public recording office to the Custodian or its designee following recording,
and each such UCC-2 and UCC-3 assignment shall reflect that the file copy
thereof should be returned to the Custodian or its designee following filing;
provided, that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases, the
Custodian shall obtain therefrom a certified copy of the recorded original. If
any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Trustee shall direct the
appropriate Mortgage Loan Seller pursuant to the applicable
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Mortgage Loan Purchase Agreement promptly to prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall upon receipt thereof cause the same to be duly recorded or filed,
as appropriate.
(d) All documents and records in the possession of the Depositor or
the Mortgage Loan Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer (at the expense of the
Depositor or the applicable Mortgage Loan Seller, as applicable) on or before
the Closing Date and shall be held by the Master Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of its right, title and
interest in the assets that constitute the Trust Fund, and further acknowledges
receipt by it or a Custodian on its behalf, subject to the proviso in the
definition of "Mortgage File" and the provisions of Section 2.01 and subject to
the further review provided for in Section 2.02(b), of (i) the Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, all in good faith and
without notice of any adverse claim, and declares that it or a Custodian on its
behalf holds and will hold such documents and the other documents received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Mortgage Loans and other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Mortgage Loan Sellers, that except as
identified in a written notice, a copy of which shall have been delivered by the
Custodian on or prior to the Closing Date to each of the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Mortgage Loan Sellers,
without regard to the proviso in the definition of "Mortgage File", each of the
documents specified in clause (i) of the definition of Mortgage File are in its
possession. In addition, within forty-five (45) Business Days after the Closing,
the Trustee or the Custodian on its behalf will review the Mortgage Files and
certify to each of the Depositor, the Master Servicer, the Special Servicer, the
Majority Subordinate Certificateholder and the Mortgage Loan Sellers that,
except as specifically identified in the Schedule of Exceptions to Mortgage File
Delivery in substantially the form annexed hereto as Exhibit C, (i) without
regard to the proviso in the definition of "Mortgage File", all documents
specified in clauses (i) through (v) and (vii), and to the extent provided in
the related Mortgage File actually known by a Responsible Officer of the Trustee
to be required, clauses (vi) and (viii) of the definition of "Mortgage File" are
in its possession, (ii) all such documents delivered or caused to be delivered
by the Mortgage Loan Sellers have been reviewed by it and appear regular on
their face and appear to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to
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the items specified in clauses (ii) (other than the zip code), (v) and (vi)(B)
of the definition of "Mortgage Loan Schedule" is correct. Notwithstanding the
above, the Custodian may deliver a revised Schedule of Exceptions to Mortgage
File Delivery to the Depositor within 60 days after the Closing Date. Such
revised schedule shall be treated as if it was attached hereto as Exhibit C.
(b) Within 90 days after the Closing Date, the Custodian shall
certify in writing to each of the Depositor, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder, the Trustee and each
Mortgage Loan Seller that, as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan as to which a Liquidation Event has
occurred or any Mortgage Loan specifically identified in any exception report
annexed thereto as not being covered by such certification): (i) all documents
specified in clauses (i) through (iv) (except clause (iv)(b) and (c), unless the
Custodian has knowledge thereof), (v) and (vii) and, to the extent provided in
the related Mortgage File, clauses (vi) and (viii) of the definition of
"Mortgage File" are in its possession, (ii) all such documents received by it in
respect of such Mortgage Loan have been reviewed by it and appear regular on
their face and appear to relate to such Mortgage Loan, and (iii) based on the
examinations referred to in Section 2.02(a) above and this Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii) (other than
the zip code), (v) and (vi)(B) of the definition of "Mortgage Loan Schedule" is
correct.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face. Neither the Trustee nor the Custodian is under any duty or
obligation to review or inspect any documents, instruments, certificates or
other papers relating to the Mortgage Loans other than those the Trustee or
Custodian are certifying to hereunder.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been properly executed, has not
been delivered to the Trustee or the Custodian, contains information that does
not conform in any respect with the corresponding information set forth in the
Mortgage Loan Schedule, or does not appear to be regular on its face (each, a
"Document Defect"), or discovers or receives notice of a breach of any
representation or warranty relating to the Mortgage Loans set forth in the
applicable Mortgage Loan Purchase Agreement (a "Breach"), and such Document
Defect or Breach, as the case may be, materially and adversely affects the
interests of the Certificateholders or the value of the affected Mortgage Loan,
such party shall give prompt written notice to the other parties hereto, to the
Majority Subordinate Certificateholder, to the applicable Mortgage Loan Seller
and to the Rating Agencies. Promptly upon becoming aware of any such Document
Defect or Breach (including through such written notice provided by any party
hereto, as provided above), the Master Servicer shall request that the
applicable Mortgage Loan Seller, not later than 90 days from such
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Mortgage Loan Seller's receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions, not later than 90 days following the
date on which any party to this Agreement discovering such Document Defect or
Breach), if such Document Defect or Breach shall materially and adversely affect
the value of the related Mortgage Loan or the interest of the Certificateholders
therein, cure such Document Defect or Breach, as the case may be, in all
material respects, which shall include payment of losses and any Additional
Trust Fund Expenses associated therewith or, if such Document Defect or Breach
(other than omissions solely due to a document not having been returned by the
related recording office) cannot be cured within such 90-day period, either (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period in accordance with the related Mortgage Loan
Purchase Agreement or (ii) substitute a Qualified Substitute Mortgage Loan for
such affected Mortgage Loan and pay the Trustee for deposit into the Certificate
Account any Substitution Shortfall Amount in connection therewith not later than
the end of such 90-day period in accordance with the related Mortgage Loan
Purchase Agreement. Notwithstanding the above, if such Document Defect or Breach
is capable of being cured but not within such 90-day period, such Document
Defect or Breach does not relate to the Mortgage Loan not being treated as a
"qualified mortgage" within the meaning of the REMIC Provisions, and the
applicable Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Document Defect or Breach within such 90-day period, such
Mortgage Loan Seller shall have an additional 90 days to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan); and provided,
further, that with respect to such additional 90-day period such Mortgage Loan
Seller shall have delivered an Officer's Certificate to the Trustee setting
forth the reason such Document Defect or Breach is not capable of being cured
within the initial 90-day period and what actions the Mortgage Loan Seller is
pursuing in connection with the cure thereof and stating that such Mortgage Loan
Seller anticipates that such Document Defect or Breach will be cured within the
additional 90-day period. If the affected Mortgage Loan is to be repurchased or
substituted, the Master Servicer shall designate the Certificate Account as the
account to which funds in the amount of the Purchase Price or the Substitution
Shortfall Amount, as applicable, are to be wired. Any such repurchase or
substitution of a Mortgage Loan shall be on a whole loan, servicing released
basis. Notwithstanding the foregoing, the delivery of a commitment to issue a
policy of lender's title insurance in lieu of the delivery of the actual policy
of lender's title insurance shall not be considered a Document Defect with
respect to any Mortgage File if such actual policy of insurance is delivered to
the Trustee or a Custodian on its behalf not later than the 90th day following
the Closing Date. Any reasonable out-of-pocket expense incurred by the Master
Servicer or the Trustee, as the case may be, in carrying out its duties pursuant
to this Section 2.03(a) or Section 2.03(b) shall constitute a Servicing Advance;
provided, however, that the Master Servicer or the Trustee, as the case may be,
shall use reasonable efforts to collect such out-of-pocket expenses from the
Mortgage Loan Seller.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a certificate
of a Servicing Officer certifying as to the receipt of the applicable Purchase
Price(s) in the Certificate Account (in the case of any such repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the Certificate
Account and the delivery of the Mortgage File(s) and the Servicing File(s) for
the
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related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master
Servicer, respectively (in the case of any such substitution), (i) the Trustee
shall execute and deliver such endorsements and assignments as are provided to
it by the Master Servicer, in each case without recourse, representation or
warranty, as shall be necessary to vest in the Mortgage Loan Seller the legal
and beneficial ownership of each repurchased Mortgage Loan or deleted Mortgage
Loan, as applicable, being released pursuant to this Section 2.03, and (ii) the
Trustee, the Custodian, the Master Servicer and the Special Servicer shall each
tender to the Mortgage Loan Seller, upon delivery to each of them of a receipt
executed by the Mortgage Loan Seller, all portions of the Mortgage File and
other documents pertaining to each such Mortgage Loan possessed by it; provided,
that such tender by the Trustee or the Custodian shall be conditioned upon its
receipt from the Master Servicer of a Request for Release. Thereafter, the
Trustee, the Custodian, the Master Servicer and the Special Servicer shall have
no further responsibility with regard to the related repurchased Mortgage
Loan(s) or deleted Mortgage Loan(s), as applicable, and the related Mortgage
File(s) and Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the Master Servicer and are necessary to permit the Master
Servicer to do so. The Master Servicer shall indemnify the Trustee for any
reasonable costs, fees, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse by the Master Servicer of such
powers of attorney.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I. Monthly
Payments due with respect to any Qualified Substitute Mortgage Loan on or prior
to the related date of substitution shall not be part of the Trust Fund or REMIC
I and will (to the extent received by the Master Servicer) be remitted by the
Master Servicer to the Mortgage Loan Seller promptly following receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and possesses all licenses and authorizations necessary to
carry on its business.
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(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, does not and will not violate the
Depositor's certificate of incorporation or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) No consent, approval or authorization of or designation,
declaration, notice or filing with any governmental authority,
corporation, person or firm on the part of the Depositor is required
in connection with the valid execution and delivery of this
Agreement or the consummation of any other transactions contemplated
hereby.
(iv) The Depositor has the full power and authority to carry
on its business as now being conducted and to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against
the Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(vi) The Depositor is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Depositor's good faith
and reasonable judgment, is likely to affect materially and
adversely either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(vii) The transfer of the Mortgage Loans to the Trust Fund as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(viii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or, in the Depositor's good faith
and reasonable judgment, is likely to materially and
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adversely affect either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(ix) Immediately prior to the transfer of the Mortgage Loans
to the Trust Fund pursuant to this Agreement, (A) the Depositor has
good and marketable title to, and is the sole owner and holder of,
each Mortgage Loan; and (B) the Depositor has full right and
authority to sell, assign and transfer the Mortgage Loans.
(x) The Depositor is transferring the Mortgage Loans to the
Trust Fund free and clear of any liens, pledges, charges and
security interests.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties and to the Rating Agencies.
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it, in its
capacity as Trustee, of the assets included in the Trust Fund. Concurrently with
such assignment and in exchange therefor, (a) the Trustee agrees to hold a
portion of each of the Mortgage Loans (other than any Additional Interest) as
part of REMIC I and (b) the Certificate Registrar, pursuant to the written
request of the Depositor executed by an officer of the Depositor, has executed,
and the Authenticating Agent has authenticated and delivered to or upon the
order of the Depositor, the Class R-I Certificates in authorized denominations.
The interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as Holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trust Fund for the benefit of the respective Holders of the
REMIC II Regular Interests and the Class R-II Certificates. The Trustee
acknowledges the assignment to it of the right, title and interest of the
Depositor in the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the
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exclusive use and benefit of all present and future Holders of the REMIC II
Regular Interests and the Class R-II Certificates.
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates.
The Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, as the Certificate
Registrar, authenticated, as the Authenticating Agent, and delivered to or upon
the written order of the Depositor, the Class R-II Certificates in authorized
denominations.
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests and any Additional Interest that is payable with respect to
the ARD Mortgage Loans to the Trust Fund for the benefit of the Holders of the
REMIC III Certificates. The Trustee acknowledges the assignment to it of the
REMIC II Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
REMIC III Certificates.
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to it of the REMIC II Regular
Interests and in exchange therefor, the Certificate Registrar has executed, and
the Trustee, as the Authenticating Agent, has authenticated and delivered to or
upon the written order of the Depositor, the REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the holders of the respective Classes of REMIC III
Certificates to receive distributions from the proceeds of REMIC III in respect
of their REMIC III Certificates, and all ownership interests evidenced or
constituted by the respective Classes of REMIC III Certificates in such
distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
diligently service and administer the Mortgage Loans which it is obligated to
service pursuant to this Agreement on behalf of the Trust Fund for the benefit
of the Certificateholders in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, with the same care, skill, prudence and diligence
with which the Master Servicer or Special Servicer, as the case may be: (1)
services and administers similar mortgage loans for other third-party
portfolios, giving due consideration to the customary and usual standards of
practice of prudent institutional, commercial, multifamily and manufactured
housing mortgage lenders servicing their own mortgage loans, or (2) services and
administers commercial, multifamily and manufactured housing mortgage loans
owned by the Master Servicer or Special Servicer, as the case may be, whichever
standard is higher, and with a view to the maximization of timely recovery of
principal and interest on a present value basis on the Mortgage Loans or
Specially Serviced Mortgage Loans, as applicable, and the best interests of the
Trust and the Certificateholders, notwithstanding:
(i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with
the related Mortgagor, a Mortgage Loan Seller (including, without
limitation, any Mortgage Loan Seller's repurchase obligation), or
any other party to this Agreement;
(ii) the ownership of any Certificate by the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate
thereof;
(iii) the Master Servicer's obligation to make Advances;
(iv) the Master Servicer's or Special Servicer's, as the case
may be, right to receive compensation for its services hereunder or
with respect to any particular transaction; and
(v) the Master Servicer's or Special Servicer's, as the case
may be, owning or managing any other mortgage loans or mortgaged
properties for third parties (the foregoing, collectively referred
to as the "Servicing Standard").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Specially Serviced
Mortgage Loans, and (ii) any REO Properties; provided, however, that the Master
Servicer shall continue to make all calculations, and prepare, or cause to be
prepared, all reports to the Certificateholders required hereunder with respect
to the Specially Serviced Mortgage Loans as if no Servicing Transfer Event had
occurred and with respect to the REO Properties (and the related REO Loans) as
if no
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REO Acquisition had occurred, and to render such incidental services with
respect to such Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein; provided, further, however, that the Master
Servicer shall not be liable for failure to comply with such duties insofar as
such failure results from a failure of the Special Servicer to provide
sufficient information to the Master Servicer to comply with such duties. Each
Mortgage Loan that becomes a Specially Serviced Mortgage Loan shall continue as
such until satisfaction of the conditions specified in Section 3.21(a). Without
limiting the foregoing, subject to Section 3.21, the Master Servicer shall be
obligated to service and administer all Mortgage Loans which are not Specially
Serviced Mortgage Loans. The Special Servicer shall make the inspections, use
its reasonable best efforts consistent with the Servicing Standard to collect
the statements and shall prepare the reports in respect of the related Mortgaged
Properties with respect to Specially Serviced Mortgage Loans in accordance with
Sections 3.12 and 3.21(c).
(b) Subject only to the Servicing Standard and the terms of this
Agreement and of the respective Mortgage Loans the Master Servicer and the
Special Servicer each shall have full power and authority, acting alone, to do
or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, with respect to each Mortgage Loan it is obligated
to service under this Agreement, each of the Master Servicer and the Special
Servicer, in its own name on behalf of and as attorney-in-fact of the Trustee on
behalf of the Certificateholders, is hereby authorized and empowered by the
Trustee and obligated to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by the related Mortgage or other security document
in the related Mortgage File on the related Mortgaged Property and related
collateral; subject to Section 3.20, any and all modifications, waivers,
amendments or consents to or with respect to any documents contained in the
related Mortgage File; and any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments. Subject to Section 3.10, the Trustee shall execute any
powers of attorney and other documents delivered to it by the Master Servicer or
Special Servicer and necessary or appropriate to enable the Master Servicer or
the Special Servicer, as the case may be, to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for and shall be indemnified on a current basis by the Master
Servicer or the Special Servicer as applicable for any negligence with respect
to, or misuse of, any such power of attorney by the Master Servicer or the
Special Servicer. Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) except as relating to a Mortgage Loan which the Master
Servicer or the Special Servicer, as applicable, is servicing pursuant to their
respective duties herein (in which case such servicer shall give notice to the
Trustee thereof), initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or Special Servicer's,
as applicable, representative capacity, or (ii) take any action with the intent
to, or which actually does cause, the Trustee to be registered to do business in
any state.
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(c) The relationship of the Master Servicer to the Trustee under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Payments.
(a) Each of the Master Servicer and the Special Servicer shall make
reasonable best efforts consistent with the Servicing Standard to collect all
payments called for under the terms and provisions of the Mortgage Loans it is
obligated to service hereunder, and shall follow such collection procedures as
are consistent with this Agreement (including, without limitation, the Servicing
Standard), provided, that with respect to the Mortgage Loans that have
Anticipated Repayment Dates, so long as the related Mortgagor is in compliance
with each provision of the related Mortgage Loan documents, the Master Servicer
and Special Servicer (including the Special Servicer and in its capacity as a
Certificateholder), shall not take any enforcement action with respect to the
failure of the related Mortgagor to make any payment of Additional Interest or
principal in excess of the principal component of the constant Monthly Payment,
other than requests for collection, until the Maturity Date of the related
Mortgage Loan. Consistent with the foregoing, the Master Servicer or the Special
Servicer each may in its discretion waive any Penalty Charge in connection with
any delinquent payment on a Mortgage Loan it is obligated to service hereunder.
(b) All amounts collected on any Mortgage Loan in the form of
payments from Mortgagors, Insurance and Condemnation Proceeds or Liquidation
Proceeds shall be applied to amounts due and owing under the related Mortgage
Note or Mortgage Notes and Mortgage (including, without limitation, for
principal and accrued and unpaid interest) in accordance with the express
provisions of each related Mortgage Note and the related Mortgage and, in the
absence of such express provisions, shall be applied (after reimbursement to the
Master Servicer, and the Trustee for any related Advances and interest thereon
as provided herein): first, as a recovery of accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate to but not including the Due Date in
the Collection Period of receipt; second, as a recovery of principal of such
Mortgage Loan to the extent of its entire unpaid principal balance; and third,
in accordance with the Servicing Standard, as a recovery of any other amounts
due and owing on such Mortgage Loan, including, without limitation, Prepayment
Premiums, Penalty Charges and Additional Interest. Amounts collected on any REO
Loan shall be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
and applicable law, the Master Servicer shall apply all Insurance and
Condemnation Proceeds it receives on a day other than a Due Date to amounts due
and owing under the related Mortgage Loan as if such Insurance and Condemnation
Proceeds were received on the Due Date in the month immediately succeeding the
month in which such Insurance and Condemnation Proceeds were received.
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SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments shall be
deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents. Servicing Accounts shall be
Eligible Accounts. Withdrawals of amounts so deposited from a Servicing Account
may be made only to: (i) effect payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable), repair, remediation, capital
improvements, and comparable items for which funds have been escrowed in the
Servicing Accounts; (ii) reimburse the Master Servicer or the Trustee for any
Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) pay interest to Mortgagors on balances in the Servicing
Account, if required by applicable law or the terms of the related Mortgage Loan
and as described below or, if not so required, to the Master Servicer; (v)
withdraw amounts deposited in error or (vi) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. As
part of its servicing duties, the Master Servicer shall pay or cause to be paid
to the Mortgagors interest on funds in Servicing Accounts, to the extent
required by law or the terms of the related Mortgage Loan.
(b) The Special Servicer, in the case of REO Loans, and the Master
Servicer, in the case of all other Mortgage Loans, shall maintain accurate
records with respect to each related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof. The Special Servicer, in the case of REO Loans, and the
Master Servicer, in the case of all other Mortgage Loans, shall obtain, from
time to time, all bills for the payment of such items (including renewal
premiums) and shall effect payment thereof by withdrawal from the related escrow
account or REO Account, as applicable, and if no such escrow account or REO
Account is available, then by the Master Servicer as Servicing Advances if such
amounts would not constitute Nonrecoverable Advances and otherwise from the REO
Account prior to the applicable penalty or termination date, employing for such
purpose Escrow Payments (which shall be so applied by the Master Servicer at the
written direction of the Special Servicer in the case of Specially Serviced
Mortgage Loans) as allowed under the terms of the related Mortgage Loan. The
Master Servicer shall service and administer any reserve accounts (including
monitoring, maintaining or changing the amounts of required escrows) in
accordance with the terms of such Mortgage Loan and the Servicing Standard;
provided, however, that in the case of a Specially Serviced Mortgage Loan, the
Master Servicer shall obtain the written direction from the Special Servicer
prior to changing the amount of escrow required or making any payments out of
the related reserve account. To the extent that a Mortgage Loan does not require
a Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Special
Servicer, in the case of Specially Serviced Mortgage Loans, and the Master
Servicer, in the case of all other Mortgage Loans, shall use reasonable best
efforts consistent with the Servicing Standard to require that payments in
respect of such items be made by the Mortgagor when and as required by the
related Mortgage Loan Documents.
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(c) In accordance with the Servicing Standard and for all Mortgage
Loans, the Master Servicer shall advance with respect to each related Mortgaged
Property (including any REO Property) all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent related Escrow Payments collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis; provided, however, that the particular
Servicing Advance would not, if made, constitute a Nonrecoverable Servicing
Advance; provided, further, that with respect to the payment of taxes and
assessments, the Master Servicer shall not be required to make such Servicing
Advance until the earlier of five Business Days after the Master Servicer has
received confirmation that such item has not been paid or the date prior to the
date after which any penalty or interest would accrue in respect of such taxes
or assessments. The Special Servicer shall give the Master Servicer and the
Trustee not less than five Business Days' written (facsimile) notice before the
date on which the Master Servicer is requested to make any Servicing Advance
with respect to a given Specially Serviced Mortgage Loan or REO Property;
provided, however, that only two Business Days' written (facsimile) notice shall
be required in respect of Servicing Advances required to be made on an urgent or
emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments). In addition, at the time of such
notice, the Special Servicer shall provide the Master Servicer and the Trustee
with such information in its possession as the Master Servicer or the Trustee,
as applicable, may reasonably request to enable the Master Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Advance. All such advances shall be reimbursable as
provided in Section 3.05. Notwithstanding that such costs may ultimately be
recovered from the related Mortgagor or otherwise, no costs incurred by the
Master Servicer or the Special Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of the
Mortgaged Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans. If such Servicing Advance is
not made by the Master Servicer or the Special Servicer within three Business
Days after such notice then (subject to a determination that such Servicing
Advance would not be a Nonrecoverable Servicing Advance) the Trustee shall make
such Servicing Advance. The failure by the Master Servicer to make any required
Servicing Advance as and when due (unless such a Servicing Advance would
constitute a Nonrecoverable Servicing Advance) shall constitute an Event of
Default under Section 7.01.
(d) In connection with its recovery of any Advance out of the
Certificate Account pursuant to Section 3.05(a), each of the Master Servicer and
the Trustee, as the case may be, shall be entitled to receive, first out of
default interest and other Penalty Charges for the related Mortgage Loan and
then, out of any amounts then on deposit in the Certificate Account, interest at
the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from the date made to, but not including, the date of
reimbursement. The Master Servicer shall reimburse the Trustee and then itself
for any outstanding Servicing Advance and any accrued interest thereon as soon
as practically possible after funds available for such purpose are deposited in
the Certificate Account.
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(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such actions or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Master Servicer shall use
reasonable best efforts consistent with the Servicing Standard to determine
whether the related Mortgagor has failed to perform its obligations under the
related Mortgage Loan and report any such failure to the Special Servicer within
a reasonable time after the later of June 30, 2000 and the date as of which such
actions or remediations are required to be or to have been taken or completed.
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related repairs and/or capital improvements at
the related Mortgaged Property in accordance with the Servicing Standard, and
such withdrawals are made in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing such Reserve Funds and (ii) unless the Mortgage Loan
documents provide otherwise, to pay the Master Servicer interest and investment
income earned on amounts in the Reserve Accounts as described below. To the
extent permitted in the applicable Mortgage, funds in the Reserve Accounts may
be invested only in Permitted Investments in accordance with the provisions of
Section 3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve
Accounts shall not be considered part of the segregated pool of assets
comprising REMIC I, REMIC II or REMIC III. Consistent with the Servicing
Standard, the Master Servicer may waive or extend the date set forth in any
agreement governing such Reserve Accounts by which the required repairs and/or
capital improvements at the related Mortgaged Property must be completed if the
related Mortgagor is diligently undertaking such repairs or capital
improvements.
SECTION 3.04. The Certificate Account, the Additional Interest
Distribution Account and the Distribution Account.
(a) The Master Servicer, on behalf of the Trustee, in trust for the
benefit of the Certificateholders, shall establish and maintain, or cause to be
established and maintained, a Certificate Account into which the Master Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the Business Day following receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received or
made by or on behalf of it subsequent to the Cut-Off Date (other than in respect
of principal and interest on the Mortgage Loans due and payable on or before the
Cut-Off Date), or payments
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(other than Principal Prepayments) received by it on or prior to the Cut-Off
Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (other than
Additional Interest) on the Mortgage Loans (net of the Master
Servicing Fees and Retained Fees) including Penalty Charges,
Percentage Premiums and Yield Maintenance Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Mortgage Loan or REO Property
(other than Liquidation Proceeds that are received in connection
with the purchase by the Master Servicer, the Special Servicer, the
Majority Subordinate Certificateholder, or the Holders of the Class
R-I Certificates of all the Mortgage Loans and any REO Properties in
the Trust Fund and that are to be deposited in the Distribution
Account pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the
Certificate Account; and
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a
blanket hazard or master single interest policy.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
processing fees, application fees, modification fees, extension fees or amounts
collected for mortgagor checks returned for insufficient funds need not be
deposited by the Master Servicer in the Certificate Account. Assumption,
extension and modification fees actually received from Mortgagors on Specially
Serviced Mortgage Loans shall be delivered on the next P&I Advance Date to the
Special Servicer as additional servicing compensation, but only to the extent
the payment of such fees are in accordance with the second paragraph of Section
3.11(b) and any other terms hereof.
If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount therefrom, any provision herein to the contrary notwithstanding.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of
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the Closing Date and of the new location of the Certificate Account and prior to
any change thereof.
(b) Upon receipt of any of the amounts enumerated in Section 3.04(a)
with respect to any Specially Serviced Mortgage Loan, the Special Servicer shall
remit within one Business Day such amounts to the Master Servicer for deposit
into the Certificate Account in accordance with the Section 3.04(a). Any such
amounts received by the Special Servicer with respect to an REO Property shall
be deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). Any items remitted to the Master Servicer pursuant to this paragraph
shall be accompanied by a copy of the invoice or other posting instructions, if
any, received from the related Mortgagor. With respect to any such amounts paid
by check to the order of the Special Servicer, the Special Servicer shall
endorse without recourse or warranty such check to the order of the Master
Servicer and shall promptly deliver any such check to the Master Servicer by
Federal Express or such other overnight courier as shall be approved by the
Master Servicer. Upon proper endorsement and addressing of package containing
such items and delivery to Federal Express or such other nationally recognized
overnight courier service, Special Servicer shall be deemed to have acted in
good faith pursuant to Section 6.03.
(c) The Paying Agent shall establish and maintain the Distribution
Account in trust for the benefit of the Certificateholders. Notwithstanding
anything herein to the contrary, the Distribution Account shall be established
as an Eligible Account. Funds held in the Distribution Account will be held
uninvested.
The Master Servicer shall, by 2:00 p.m. Central time on each P&I
Advance Date, deliver to the Paying Agent for deposit in the Distribution
Account the following amounts via wire transfer in immediately available funds
(without duplication):
(i) all amounts constituting the Available Distribution Amount
for the immediately following Distribution Date;
(ii) Any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19 in connection with Prepayment
Interests Shortfalls;
(iii) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03;
(iv) any Liquidation Proceeds paid by the Master Servicer, the
Special Servicer, or the Holders of the Class R-I Certificates in
connection with the purchase of all of the Mortgage Loans and any
REO Properties in the Trust Fund pursuant to Section 9.01 (exclusive
of that portion thereof required to be deposited in the Certificate
Account pursuant to Section 9.01);
(v) any Prepayment Premiums; and
(vi) any other amounts required to be so delivered for deposit
in the Distribution Account pursuant to any provision of this
Agreement.
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The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein. The Trustee shall deposit in the
Distribution Account any P&I Advances required to be made by it hereunder.
The Trustee shall give notice to the Master Servicer and the
Depositor of the location of the Distribution Account and of the new location of
the Distribution Account prior to any change thereof.
(d) Prior to the first P&I Advance Date following a Collection
Period in which Additional Interest is received on any ARD Mortgage Loan, the
Trustee shall establish and maintain the Additional Interest Distribution
Account in the name of the Trustee in trust for the benefit of the
Certificateholders entitled to distributions of Additional Interest pursuant to
Section 4.01(c) of the Agreement. The Additional Interest Distribution Account
shall be established and maintained as an Eligible Account. On or before each
P&I Advance Date, the Master Servicer shall remit to the Trustee for deposit in
the Additional Interest Distribution Account an amount equal to the Additional
Interest received during the related Collection Period. On each Distribution
Date, the Trustee shall withdraw the Additional Interest from the Additional
Interest Distribution Account for distribution pursuant to Section 4.01(c).
Following the distribution of Additional Interest on the first Distribution Date
after which no ARD Mortgage Loans remain outstanding that pursuant to their
terms could pay Additional Interest, the Trustee shall terminate the Additional
Interest Distribution Account. Funds held in the Additional Interest
Distribution Account will be held uninvested.
SECTION 3.05. Permitted Withdrawals From the Certificate Account and
the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes:
(i) to deposit in the Distribution Account the amounts that
may be applied to make P&I Advances pursuant to Section 4.03(a);
(ii) to pay to itself unpaid Master Servicing Fees, to ORIX
unpaid Retained Fees and to the Special Servicer any unpaid Special
Servicing Fees, rights to payment of the Master Servicing Fees and
the Retained Fees pursuant to this clause (ii) with respect to any
Mortgage Loan, Specially Serviced Mortgage Loan or REO Loan being
limited to amounts allocable to interest received on or in respect
of such Mortgage Loan, Specially Serviced Mortgage Loan, or REO
Loan;
(iii) to pay the Special Servicer Workout Fees and Liquidation
Fees in respect of each Mortgage Loan, Specially Serviced Mortgage
Loan and REO Loan, as applicable, the Master Servicer's or Special
Servicer's, as applicable, rights to payment pursuant to this clause
(iii) with respect to any Mortgage Loan, Specially Serviced Mortgage
Loan or REO Loan being limited to amounts
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received on or in respect of such Mortgage Loan, Specially Serviced
Mortgage Loan, or REO Loan;
(iv) to reimburse itself or the Trustee, as applicable (in
reverse of such order with respect to any Mortgage Loan), for
unreimbursed P&I Advances, the Master Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iv) being limited to
amounts received which represent Late Collections of interest (net
of the related Master Servicing Fees and Retained Fees) on and
principal of the particular Mortgage Loans or REO Loans with respect
to which such P&I Advances were made;
(v) to reimburse itself or the Trustee, as applicable (in
reverse of such order with respect to any Mortgage Loan), for
unreimbursed Servicing Advances, the Master Servicer's or the
Trustee's respective rights to reimbursement pursuant to this clause
(v) with respect to any Mortgage Loan or REO Property being limited
to, as applicable, related payments, Liquidation Proceeds, Insurance
and Condemnation Proceeds and REO Revenues;
(vi) to reimburse itself or the Trustee, as applicable (in
reverse of such order with respect to any Mortgage Loan) for
Nonrecoverable Advances, in each case out of general collections on
the Mortgage Loans and REO Properties;
(vii) at such time as it reimburses itself or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage
Loan), for (a) any unreimbursed P&I Advance pursuant to clause (iv)
above, to pay itself or the Trustee, as applicable, any interest
accrued and payable thereon in accordance with Section 4.03(d) and
3.11(d), (b) any unreimbursed Servicing Advances pursuant to clause
(v) above, to pay itself or the Trustee, as the case may be, any
interest accrued and payable thereon in accordance with Section
3.03(d) and 3.11(d) or (c) any Nonrecoverable Advances pursuant to
clause (vi) above, to pay itself or the Trustee, as the case may be,
any interest accrued and payable thereon; provided that, in each
such case, such reimbursements will first be made from default
interest and other Penalty Charges collected during the related
Collection Period and thereafter (if such amounts are insufficient
therefor) from other amounts on deposit on the Certificate Account;
(viii) to reimburse itself, the Special Servicer, the
Depositor or the Trustee, as the case may be, for any unreimbursed
expenses reasonably incurred by such Person in respect of any Breach
or Defect giving rise to a repurchase obligation of a Mortgage Loan
Seller under Section 3.3 of the applicable Mortgage Loan Purchase
Agreement, including, without limitation, any expenses arising out
of the enforcement of the repurchase obligation, each such Person's
right to reimbursement pursuant to this clause (viii) with respect
to any Mortgage Loan being limited to that portion of the Purchase
Price paid for such Mortgage Loan that represents such expense in
accordance with clause (d) of the definition of Purchase Price;
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(ix) in accordance with Section 2.03(d), to reimburse itself
or the Trustee, as the case may be, out of general collections on
the Mortgage Loans and REO Properties for any unreimbursed expense
reasonably incurred by such Person in connection with the
enforcement of a Mortgage Loan Seller's obligations under Section
3.3 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to
clause (viii) above or otherwise;
(x) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) out of general collections on the
Mortgage Loans and REO Properties;
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), to the extent collected from the
related Mortgagor and to the extent that all amounts then due and
payable with respect to the related Mortgage Loan have been paid and
are not needed to pay interest on Advances in accordance with
Section 3.11(c), (a) interest and investment income earned in
respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the
Certificate Account for any period from any Distribution Date to the
immediately succeeding P&I Advance Date), (b) late charges and (c)
Penalty Charges (other than late charges) on Mortgage Loans (other
than Specially Serviced Mortgage Loans); and to pay the Special
Servicer, as additional servicing compensation in accordance with
the fourth paragraph of Section 3.11(c), late charges on Specially
Serviced Mortgage Loans and Penalty Charges (other than late
charges) on Specially Serviced Mortgage Loans (but only to the
extent collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to the related
Specially Serviced Mortgage Loan have been paid and are not needed
to pay interest on Advances in accordance with Section 3.11(c));
(xii) to recoup any amounts deposited in the Certificate
Account in error;
(xiii) to pay itself, the Special Servicer, the Depositor or
any of their respective directors, managers, members, officers,
employees and agents, as the case may be, any unreimbursed amounts
payable to any such Person pursuant to Sections 6.03 or to the
Trustee pursuant to Section 8.05;
(xiv) to pay for (a) the cost of the Opinions of Counsel and
any costs not paid by the related Mortgagor contemplated by Section
3.20(a) to the extent payable out of the Trust Fund, and (b) the
cost of obtaining the REO Extension contemplated by Section 3.16(a);
(xv) to pay out of general collections on the Mortgage Loans
and REO Properties any and all federal, state and local taxes
imposed on the Trust Fund or
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either of their assets or transactions, together with all incidental
costs and expenses, to the extent that none of the Master Servicer,
the Special Servicer or the Trustee is liable therefor pursuant to
Section 10.01;
(xvi) to reimburse the Master Servicer out of general
collections on the Mortgage Loans and REO Properties for expenses
incurred by and reimbursable to it by the Trust Fund pursuant to
Section 10.01(f);
(xvii) to pay itself, the Special Servicer, or a Mortgage Loan
Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased by such Person pursuant to this Agreement,
all amounts received thereon subsequent to the date of purchase
relating to periods after the date of purchase;
(xviii) to remit to the Trustee for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xix) deposit in the Distribution Account the amount required
to be deposited therein pursuant to Section 4.01(a);
(xx) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01; and
(xxi) to pay the Master Servicer any additional compensation
it may be entitled to pursuant to Section 7.02.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
(b) The Paying Agent may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders on each
Distribution Date in accordance with Section 4.01 or 9.01, as
applicable;
(ii) to pay the Trustee or any of its directors, officers,
employees and agents, as the case may be, any unreimbursed amounts
payable or reimbursable to any such Person pursuant to Section
8.05(b);
(iii) [RESERVED]
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee (A) as provided in clause (v) of the definition of
"Disqualified Organization", (B) as contemplated by Section
10.01(i), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement
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requested by the Trustee which amendment is in furtherance of the
rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed
on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs
and expenses, to the extent none of the Trustee, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable
to it pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by
the Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, if amounts on deposit in the Certificate Account are not
sufficient to reimburse the full amount of Advances and interest thereon listed
in Sections 3.05(a)(iv), (v), (vi) and (viii), then reimbursements shall be paid
first to the Trustee and second, to the Master Servicer.
SECTION 3.06. Investment of Funds in the Certificate Account,
Reserve Accounts and REO Accounts.
(a) The Master Servicer may only direct any depository institution
maintaining the Certificate Account or a Reserve Account and the Special
Servicer may direct any depository institution maintaining an REO Account (each,
for purposes of this Section 3.06, an "Investment Account") to invest, or if it
is such depository institution, may itself invest, the funds held therein only
in one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (in the case of the Certificate
Account or a Reserve Account) or the Special Servicer (in the case an REO
Account), on behalf of the Trustee, shall maintain continuous possession of any
Permitted Investment of amounts in the Certificate Account, Reserve Account or
REO Account that is either (i) a "security," as such term is defined in the UCC
or (ii) other property in which a secured party may perfect its security
interest by possession under the UCC or any other applicable law. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer or, in the case of
an REO Account, the Special Servicer shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may
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otherwise mature hereunder in an amount equal to the lesser of (a)
all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer, the Special Servicer or
the Trustee, as the case may be, that such Permitted Investment
would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, to the extent of the Net Investment Earnings, if any,
with respect to such account for each period from any Distribution Date to the
immediately succeeding P&I Advance Date, shall be for the sole and exclusive
benefit of the Master Servicer and shall be subject to its withdrawal, or
withdrawal at its direction, in accordance with Section 3.05(a), 3.05(b) or
3.05(c), as the case may be.
(c) Interest and investment income realized on funds deposited in
the REO Account, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from any Distribution Date to the
immediately succeeding P&I Advance Date, shall be for the sole and exclusive
benefit of the Special Servicer and shall be subject to its withdrawal in
accordance with Section 3.16(c).
(d) In the event that any loss shall be incurred in respect of any
Permitted Investment on deposit in the Certificate Account, a Reserve Account or
an REO Account, the Master Servicer or the Special Servicer (in the case of any
REO Account) shall deposit therein, no later than the P&I Advance Date, without
right of reimbursement, the amount of the Net Investment Loss, if any, with
respect to such account for the period from the immediately preceding
Distribution Date to such P&I Advance Date.
(e) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee or the Master Servicer on its behalf may and, subject to
Section 8.02, upon the request of Holders of Certificates entitled to a majority
of the Voting Rights allocated to any Class shall, take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall use its reasonable best efforts
consistent with the Servicing Standard to cause the Mortgagor to maintain, to
the extent required by the terms of the related Mortgage Note, all Insurance
Policy coverage required under the related Mortgage (to the extent that the
Trustee has an insurable interest), or if the related borrower does not maintain
such Insurance Policy coverage and such Insurance Policy coverage is available
at commercially reasonable rates), consistent with the Servicing Standard, the
Master Servicer shall itself maintain
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such coverage with Qualified Insurers; provided, however, that if the Master
Servicer obtains such insurance, the related Insurance Policy shall include a
replacement cost endorsement providing for no deduction for depreciation but in
any event in an amount sufficient to avoid the application of any co-insurance
clause unless otherwise permitted in the related Mortgage Loan documents;
provided further, that if any of the related Loan Documents permits the holder
thereof to dictate to the Mortgagor the Insurance Policy coverage to be
maintained on such Mortgaged Property, the Master Servicer shall impose such
insurance requirements as are consistent with the Servicing Standard; provided
further, that the Master Servicer shall not be required to maintain earthquake
insurance on any Mortgaged Property unless such insurance was required at
origination and is available at commercially reasonable rates; provided further,
that the Special Servicer shall have the right, but not the obligation, to
maintain earthquake insurance at its expense on any Mortgaged Property. Subject
to Section 3.17(a), the Special Servicer shall maintain for each REO Property no
less Insurance Policy coverage than was previously required of the Mortgagor
under the related Mortgage Loan with Qualified Insurers.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Master Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of the Mortgage Loans other than REO
Properties), (ii) be in the name of the Special Servicer (in the case of
insurance maintained in respect of REO Properties) on behalf of the Trustee,
(iii) include coverage in an amount not less than the lesser of the full
replacement cost of the REO Property or Mortgaged Property without reduction for
depreciation or the outstanding principal balance owing on the related REO Loan
but in any event in an amount sufficient to avoid the application of any
co-insurance clause unless otherwise permitted in the related Mortgage Loan
documents and (iv) be issued by a Qualified Insurer authorized under applicable
law to issue such Insurance Policies.
With respect to any other Mortgage Loan that requires or permits the
related lender to require that earthquake insurance be maintained, the Majority
Subordinate Certificateholder may request that earthquake insurance be secured
for one or more Mortgaged Properties and, upon such request, the Master Servicer
or Special Servicer, as applicable, shall use its reasonable best efforts
consistent with the Servicing Standard to enforce such obligations consistent
with the terms of the related Loan Documents, provided, however, that the
Controlling Class Representative may not make such request with respect to
Mortgaged Properties with respect to which earthquake insurance was not required
to be maintained at origination unless there is a material adverse change in the
facts and circumstances relating to the Mortgaged Property, including a decline
in the net operating income or appraised value of the Mortgaged Property by 10%.
With respect to any Mortgage Loan (i) that does not require or
permit the related lender to require that earthquake insurance be maintained or
(ii) that the Master Servicer or Special Servicer, as applicable, has been
unable to enforce the provisions of the preceding sentence, the Controlling
Class Representative may request that earthquake insurance be secured by the
Master Servicer or Special Servicer, as applicable, at the expense of the
Controlling Class Representative.
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Any amounts collected by the Master Servicer or the Special Servicer
under any such Insurance Policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
the Servicing Standard and the provisions of the related Mortgage Loan) shall be
deposited in the Certificate Account, subject to withdrawal pursuant to Section
3.05(a).
Unless otherwise specified herein, any costs incurred by the Master
Servicer in maintaining any such Insurance Policies (other than in respect of
REO Properties) (i) shall be advanced by the Master Servicer (or, if required by
Section 3.03(c) the Trustee) as a Servicing Advance (unless determined to be a
Nonrecoverable Advance) if the Mortgagor defaults on its obligation to do so,
and will be charged to the related Mortgagor, and (ii) shall not, for purposes
thereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
Any cost incurred by the Special Servicer in maintaining any such Insurance
Policies with respect to REO Properties shall be an expense of the Trust payable
out of the related REO Account pursuant to Section 3.16(c) or, if the amount on
deposit therein is insufficient therefor, advanced by the Master Servicer (or,
if required by Section 3.03(c), the Trustee) as a Servicing Advance.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the Master Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such blanket Insurance Policy in a timely fashion in accordance
with the terms of such policy. In the event the Master Servicer or the Special
Servicer shall cause any Mortgaged Property or REO Property to be covered by
such blanket insurance policy, the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than any
minimum or standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) shall be paid by the Master
Servicer (or, if required by Section 3.03(c), the Trustee) as a Servicing
Advance. The Special Servicer, to the extent consistent with the Servicing
Standard, may maintain, earthquake insurance on REO Properties, provided
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coverage is available at commercially reasonable rates, the cost of which shall
be a Servicing Advance made by the Master Servicer.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering the Master
Servicer's and the Special Servicer's, as applicable, officers and employees and
other persons acting on behalf of the Master Servicer and the Special Servicer
in connection with its activities under this Agreement with a deductible clause
that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face
amount of the fidelity bond or errors and omissions policy. The Master Servicer
or the Special Servicer, as applicable, shall cause the Trustee, on behalf of
the Trust, to be named as a loss payee on each such fidelity bond and errors and
omissions policy. The amount of coverage shall be at least equal to the coverage
that would be required by FNMA or FHLMC, whichever is greater, with respect to
the Master Servicer or the Special Servicer if the Master Servicer or the
Special Servicer, as applicable, were servicing and administering the Mortgage
Loans or Specially Serviced Mortgage Loans, as applicable, for FNMA or FHLMC.
Coverage of the Master Servicer or the Special Servicer under a policy or bond
obtained by an Affiliate of the Master Servicer or the Special Servicer and
providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the Master
Servicer will promptly report in writing to the Trustee any material changes
that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (and such flood insurance has
been made available), the Master Servicer will use its reasonable best efforts
consistent with the Servicing Standard to cause the related Mortgagor (in
accordance with applicable law and the terms of the Mortgage Loan documents) to
maintain, and, if the related Mortgagor shall default in its obligation to so
maintain, shall itself maintain to the extent available at commercially
reasonable rates (as determined by the Master Servicer in accordance with the
Servicing Standard), flood insurance in respect thereof, but only to the extent
the related Mortgage Loan permits the mortgagee to require such coverage and the
maintenance of such coverage is consistent with the Servicing Standard. Such
flood insurance shall be in an amount not less than the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Master Servicer shall promptly make a Servicing Advance for such
costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standard), a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the Flood Disaster
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Protection Act of 1973, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer or the Trustee, as
applicable, as a Servicing Advance.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan or Specially Serviced Mortgage Loan
which contains a provision in the nature of a "due-on-sale" clause, which by its
terms:
(i) provides that such Mortgage Loan or Specially Serviced
Mortgage Loan shall (or may at the mortgagee's option) become due
and payable upon the sale or other transfer of an interest in the
related Mortgaged Property or
(ii) provides that such Mortgage Loan or Specially Serviced
Mortgage Loan may not be assumed without the consent of the
mortgagee in connection with any such sale or other transfer,
for so long as such Mortgage Loan is included in the Trust Fund, the Master
Servicer, and, in the case of any Specially Serviced Mortgage Loan, the Special
Servicer, in each case on behalf of the Trustee as the mortgagee of record,
shall exercise (or waive its right to exercise) any right it may have with
respect, as applicable, to such Mortgage Loan or Specially Serviced Mortgage
Loan (x) to accelerate the payments thereon or (y) to withhold its consent to
any such sale or other transfer, in a manner consistent with the Servicing
Standard.
(b) As to each Mortgage Loan or Specially Serviced Mortgage Loan
which contains a provision in the nature of a "due-on-encumbrance" clause, which
by its terms:
(i) provides that such Mortgage Loan or Specially Serviced
Mortgage Loan shall (or may at the mortgagee's option) become due
and payable upon the creation of any additional lien or other
encumbrance on the related Mortgaged Property or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related
Mortgaged Property,
for so long as such Mortgage Loan or Specially Serviced Mortgage Loan is
included in the Trust Fund, the Master Servicer, as to the Mortgage Loans that
are not Specially Serviced Mortgage Loans, or the Special Servicer, as to
Specially Serviced Mortgage Loans, on behalf of the Trustee as the mortgagee of
record, shall exercise (or waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon or (y)
to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. The Master
Servicer and the Special Servicer may charge an assumption fee to the related
Mortgagor pursuant to the related Mortgage Loan documents.
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The Master Servicer shall notify the Special Servicer of any request
for consent to the creation of any additional lien or other encumbrance on any
non-Specially Serviced Mortgage Loan. The Master Servicer shall not provide such
consent unless it receives written approval from the Special Servicer; provided,
however, that the Special Servicer shall be deemed to have given the consent
required by the preceding part of this sentence if it fails to respond to such
notification within 10 business days after receipt, and provided further, the
Master Servicer receives written confirmation of each of the Rating Agencies as
provided in Section 3.08(e).
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, neither the
Master Servicer nor the Special Servicer shall agree to modify, waive or amend
any term of any Mortgage Loan in connection with the taking of, or the failure
to take, any action pursuant to this Section 3.08, other than the identity, form
or structure of the borrower pursuant to an assumption agreement.
(e) Notwithstanding anything to the contrary in this Section 3.08,
neither the Master Servicer nor the Special Servicer shall waive any rights
under a "due-on-encumbrance" clause or, with respect to any Mortgage Loan whose
principal balance is 2% or more of the outstanding pool balance (for such
purposes, treating as a single Mortgage Loan all Mortgage Loans made to the same
Borrower and all Affiliates of any Borrower) under any "due-on-sale" clause with
respect to any Mortgage Loan, unless it obtains from each Rating Agency a
written confirmation that such waiver would not cause a downgrading,
qualification or withdrawal of the rating then assigned to any of the
Certificates.
(f) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer may grant (with respect to a Mortgage Loan other than a
Specially Serviced Mortgage Loan) and the Special Servicer may grant (with
respect to any Specially Serviced Mortgage Loan or REO Property), without any
Rating Agency confirmation as provided in clause (e) above or in the case of a
Mortgage Loan without Special Servicer approval, a request for consent to
subject the related Mortgaged Property or REO Property to an easement or
right-of-way for utilities, access, parking, public improvements or another
purpose, and may consent to subordination of the related Mortgage Loan to such
easement or right-of-way provided the Master Servicer or Special Servicer, as
applicable, shall have determined in accordance with the Servicing Standard that
such easement or right-of-way shall not materially interfere with the
then-current use of the related Mortgaged Property or REO Property, or the
security intended to be provided by such Mortgage, the related Mortgagor's
ability to repay the Mortgage Loan, or materially or adversely affect the value
of such Mortgaged Property or REO Property.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer, subject to subsections (b) through (d) of
this Section 3.09, may at any time, consistent with the Servicing Standard,
foreclose upon or otherwise
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comparably convert (which may include an REO Acquisition) the ownership of
property securing such Mortgage Loans, as come into and continue in default as
to which no satisfactory arrangements can be made for collection of delinquent
payments, and which are not released from the Trust Fund pursuant to any other
provision hereof. The foregoing is subject to the provision that, in any case in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the Master Servicer shall not be required to make a Servicing Advance and expend
funds toward the restoration of such property unless the Special Servicer has
determined in its reasonable discretion that such restoration will increase the
net proceeds of liquidation of such Mortgaged Property to Certificateholders
after reimbursement to the Master Servicer for such Servicing Advance, and the
Master Servicer has determined that such Servicing Advance together with accrued
and unpaid interest thereon will be recoverable by the Master Servicer out of
the proceeds of liquidation of such Mortgaged Property, as contemplated in
Section 3.05(a)(iv). To the extent that the Master Servicer (or, if required
pursuant to Section 3.03(c), the Trustee) has determined that the same would not
constitute a Nonrecoverable Advance and has made such Advance, the Special
Servicer shall be responsible for distributing such Advance to cover all other
costs and expenses incurred by it in any such proceedings. To the extent that
the Master Servicer or Special Servicer is a bidder at any foreclosure
proceeding, nothing contained in this Section 3.09 shall be construed so as to
require the Master Servicer or the Special Servicer, on behalf of the Trust
Fund, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the Master Servicer or the Special Servicer in its reasonable and
good faith judgment taking into account the factors described in Section 3.18(d)
and the results of any Appraisal obtained pursuant to the following sentence,
all such bids to be made in a manner consistent with the Servicing Standard. If
and when the Special Servicer or the Master Servicer deems it necessary and
prudent for purposes of establishing the fair market value of any Mortgaged
Property securing a Defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer or the Master Servicer, as the
case may be, is authorized to have an Appraisal performed with respect to such
property by an Independent Appraiser the cost of which shall be paid by the
Master Servicer (or, if required by Section 3.03(c), the Trustee) as a Servicing
Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be a Servicing Advance) to the
effect that the holding of such personal property by the Trust Fund
will not cause the imposition of a tax on any REMIC created
hereunder under the REMIC Provisions or cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, or take any other action with respect to
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any Mortgaged Property, if, as a result of any such action, the Trustee, on
behalf of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person who regularly conducts Environmental
Assessments, that:
(i) the Mortgaged Property is in material compliance with
applicable environmental laws and regulations or, if not, that
taking such actions as are necessary to bring the Mortgaged Property
in compliance therewith is reasonably likely to produce a greater
recovery on a present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could be required, that taking such actions with respect to such
Mortgaged Property is reasonably likely to produce a greater
recovery on a present value basis than not taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Master Servicer or the Trustee, as a Servicing Advance as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence may be withdrawn from the Certificate
Account at the direction of the Special Servicer as an expense of the Trust Fund
pursuant to Section 3.05(a)(ix); and if any such Environmental Assessment so
warrants, the Special Servicer shall, at the expense of the Trust Fund, retain
an Independent Person who regularly conducts Environmental Assessments to
perform such additional environmental testing as it deems necessary and prudent
to determine whether the conditions described in clauses (i) and (ii) of the
preceding sentence have been satisfied in each case subject to the Master
Servicer's determination that such Advances, if made would not be a
Nonrecoverable Advance.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 3.2 of the Mortgage Loan Purchase Agreements for
which the Mortgage Loan Sellers could be required to repurchase such Defaulted
Mortgage Loan pursuant to Section 3.3 of the Mortgage Loan Purchase Agreements,
then the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund in accordance with the Servicing Standard
(including, at the Special Servicer's option, proceeding to acquire title to the
Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage if the
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Special Servicer has obtained and delivered to the Trustee an Opinion of Counsel
to the effect that such release will not result in the imposition of tax on any
REMIC created hereunder or cause any REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding.
(e) The Special Servicer shall promptly provide copies of all
written reports and any Environmental Assessments received from any Independent
Person conducting Environmental Assessments or related testing to the Trustee,
the Paying Agent and the Master Servicer regarding any actions taken or proposed
to be taken by the Special Servicer with respect to any Mortgaged Property
securing a defaulted Mortgage Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of both such
conditions, repurchase of the Loan by the applicable Mortgage Loan Seller or
release of the lien of the related Mortgage on such Mortgaged Property. Upon
request, the Trustee shall forward, or cause to be forwarded all such reports to
the Certificateholders and each Rating Agency promptly following the receipt
thereof. In addition, the Master Servicer will deliver, or cause to be delivered
to the Class G, Class H, Class J and Class K Certificateholders and the Rating
Agencies a copy of any such written reports and any Environmental Assessments
within 15 days after receipt of such written reports and Environmental
Assessments from the Special Servicer.
(f) The Master Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed and the Master Servicer shall report, via Form 1099C,
all forgiveness of indebtedness. The Special Servicer shall provide the Master
Servicer with such information or reports relating to the Specially Serviced
Mortgage Loans and REO Property that the Master Servicer deems necessary to
fulfill its obligations under this paragraph (f) promptly upon the Master
Servicer's request therefor. The Master Servicer shall deliver a copy of any
such report to the Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall prepare and maintain accurate records
of each Final Recovery Determination in respect of a Defaulted Mortgage Loan or
REO Property and the basis thereof. Each Final Recovery Determination shall be
evidenced by an Officer's Certificate delivered to the Trustee and the Master
Servicer no later than the next succeeding P&I Advance Date.
(i) Within 60 days after the Appraisal Reduction Event, the Special
Servicer shall order and receive an Appraisal (the cost of which shall be paid
as a Servicing Advance by the Master Servicer), or with respect to any Mortgage
Loan with an outstanding principal balance less than $2,000,000, an internal
valuation performed by the Special Servicer, which Appraisal or internal
valuation, as applicable, shall be delivered by the Special Servicer to the
Master Servicer
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and the Trustee, who shall deliver such Appraisal or internal valuation, as
applicable, to the Paying Agent and upon request each Holder of a Class G, Class
H, Class J and Class K Certificate and the Rating Agencies within 15 days of
receipt by the Trustee of such Appraisal or internal valuation, as applicable,
from the Special Servicer. No later than the Determination Date occurring on or
after receipt by the Special Servicer of such Appraisal, the Special Servicer
shall calculate and report to the Master Servicer and the Trustee the Appraisal
Reduction and Appraisal Reduction Amount taking into account such Appraisal and
the Master Servicer shall confirm such calculation.
(j) With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred, the Special Servicer shall, within 30 days of each
annual anniversary of the related Appraisal Reduction Event or sooner if a
material event has occurred that the Special Servicer reasonably believes will
positively or negatively affect the valuation of the related Mortgaged Property,
order a new Appraisal the cost of which shall be paid by the Master Servicer
(or, if required by Section 3.03(c), the Trustee) as a Servicing Advance or an
internal valuation, if applicable (which Appraisal or internal valuation may be
an update of the preceding Appraisal or internal valuation that is not a letter
update but includes a current assessment of relevant market conditions). Based
upon such Appraisal, internal valuation or update, as applicable, the Special
Servicer shall redetermine and report to the Paying Agent, the Master Servicer
and the Trustee (and the Master Servicer shall confirm such calculation) the
amount of the Appraisal Reduction with respect to such Mortgage Loan and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan and Master Servicer shall make Advances based
on such new Appraisal, internal valuation or update, respectively.
(k) With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred and which has become a Corrected Mortgage Loan and has
remained current for twelve consecutive Monthly Payments (for such purposes
taking into account any amendment or modification of such Mortgage Loan), and
with respect to which no other Appraisal Reduction Event has occurred and is
continuing, the Special Servicer may within 30 days of the date of such twelfth
Monthly Payment, order a new Appraisal the cost of which shall be paid by the
Master Servicer (or, if required by Section 3.03(c), the Trustee) as a Servicing
Advance, or an internal valuation, if applicable (which Appraisal or internal
valuation may be an update of the preceding Appraisal or internal valuation that
is not a letter update but includes a current assessment of relevant market
conditions). Based upon such Appraisal, update or internal valuation, the
Special Servicer shall redetermine and report to the Paying Agent, the Master
Servicer and the Trustee the amount of the Appraisal Reduction with respect to
such Mortgage Loan and such redetermined Appraisal Reduction shall replace the
prior Appraisal Reduction with respect to such Mortgage Loan and Master Servicer
shall make Advances based on such new Appraisal, internal valuation or update.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or internal valuation with respect to a Mortgage Loan which
is the subject of an Appraisal Reduction Event to the extent that the Special
Servicer has obtained an Appraisal or an internal valuation, as applicable, with
respect to the related Mortgaged Property within the 12-month period immediately
prior to the occurrence of such Appraisal Reduction Event and there has been no
material change to the Mortgaged Property that would affect the validity of such
Appraisal or internal valuation, respectively. Instead, the Special Servicer may
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use such prior Appraisal in calculating any Appraisal Reduction with respect to
such Mortgage Loan.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or the Special Servicer, as the case may be, of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Master Servicer or Special Servicer, as the case may be, will
immediately notify the Trustee and request delivery of the related Mortgage
File. Any such notice and request shall be in the form of a Request for Release
signed by a Servicing Officer and shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to Section 3.04(a)
or remitted to the Master Servicer to enable such deposit, have been or will be
so deposited. Within seven Business Days (or within such shorter period as
release can reasonably be accomplished if the Master Servicer notifies the
Trustee of an exigency) of receipt of such notice and request, the Trustee shall
release, or cause any related Custodian to release, the related Mortgage File to
the Master Servicer or Special Servicer, as the case may be. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account but shall be payable
by the related borrower.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer shall deliver
to the Trustee a Request for Release signed by a Servicing Officer. Upon receipt
of the foregoing, the Trustee shall deliver or cause the related Custodian to
deliver, the Mortgage File or any document therein to the Master Servicer or the
Special Servicer (or a designee), as the case may be.
(c) Within five Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents delivered to it by the Special Servicer and necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity. The Special Servicer shall be responsible for the preparation of
all such documents and pleadings. When submitted to the Trustee for signature,
such documents or pleadings shall be accompanied by a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee and, for so long
as ORIX is the Master Servicer, the
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Retained Fee, with respect to each Mortgage Loan and REO Loan (other than the
Mortgage Loans designated ML-124, ML-125 and ML-126. As to each Mortgage Loan
and REO Loan, the Master Servicing Fee and Retained Fee shall accrue from time
to time at the Master Servicing Fee Rate or Retained Fee Rate, as applicable,
and shall be computed on the basis of the Stated Principal Balance of such
Mortgage Loan as of the immediately preceding Distribution Date (in each case,
after giving effect to the distribution of principal of such Mortgage Loan on
such Distribution Date) and for the same period respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed. The Master Servicing Fee and Retained Fee with respect to any
Mortgage Loan or REO Loan (and any interest on Advances) shall cease to accrue
if a Liquidation Event occurs in respect thereof. The Master Servicing Fee and
Retained Fee shall be payable monthly, on a loan-by-loan basis, from payments of
interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees and ORIX shall be entitled to recover unpaid Retained Fees in
respect of any Mortgage Loan or REO Loan, in each case out of that portion of
related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and
REO Revenues (in the case of an REO Loan) allocable as recoveries of interest,
to the extent permitted by Section 3.05(a). The right to receive the Master
Servicing Fee and, for so long as ORIX is the Master Servicer, the Retained Fee
may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement. If ORIX ceases to be the Master Servicer under this Agreement,
ORIX will continue to have the right to receive the Retained Fee.
(b) Additional servicing compensation in the form of all assumption
and modification fees (including any extension fees) paid by the Mortgagor on
Mortgage Loans that are not Specially Serviced Mortgage Loans, and only to the
extent that all amounts then due and payable with respect to the related
Mortgage Loan (including interest on Advances) have been paid, and charges for
beneficiary statements or demands and amounts collected for checks returned for
insufficient funds, processing fees and application fees, in each case only to
the extent actually paid by the related Mortgagor, shall be retained by the
Master Servicer and shall not be required to be deposited in the Certificate
Account pursuant to Section 3.04(a). The Master Servicer shall also be entitled
to additional servicing compensation in the form of: (i) Penalty Charges
received on the Mortgage Loans (other than any Specially Serviced Mortgage
Loans), but only to the extent actually paid by the related Mortgagor and to the
extent that all amounts then due and payable with respect to the related
Mortgage Loan (including interest on Advances) have been paid and are not needed
to pay interest on Advances with respect to that Mortgage Loan; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Certificate
Account (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each period from any Distribution Date to the
immediately succeeding P&I Advance Date), and (iii) interest earned on deposits
in the Servicing Account which are not required by applicable law or the related
Mortgage Loan to be paid to the Mortgagor. The Master Servicer shall be required
to pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any Sub-Servicers chosen and appointed by it pursuant
to the terms of the related Sub-Servicer Agreement and, except as provided in
Section 3.07, the premiums for any blanket Insurance Policy insuring against
hazard losses pursuant to Section 3.07), if and to the extent such
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expenses are not payable directly out of the Certificate Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan and interest or other income
earned on deposits relating to the Trust Fund in any REO Account in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to each such account for each period from any Distribution
Date to the immediately succeeding P&I Advance Date). As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
or REO Loan as of the immediately preceding Distribution Date (in each case,
after giving effect to the distribution of principal of such Mortgage Loan on
such Distribution Date) and for the same period respecting which any related
interest payment due on such Specially Serviced Mortgage Loan or deemed to be
due on such REO Loan is computed. The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. The Special Servicing Fee shall be
payable monthly, on a loan-by-loan basis, to the extent permitted by Section
3.05(a). The right to receive the Special Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of (a) all assumption
fees received on Specially Serviced Mortgage Loans and (b) all modification fees
(including any extension fees) received on Specially Serviced Mortgage Loans and
all other Mortgage Loans for which the Special Servicer is responsible pursuant
to Section 3.20, but only to the extent actually collected from the related
Mortgagor and only to the extent that all amounts then due and payable with
respect to the related Mortgage Loan (including those payable to the Master
Servicer pursuant to Section 3.11(a)) have been paid, shall be paid to the
Special Servicer by the Master Servicer on the following P&I Advance Date and
shall not be required to be deposited in the Certificate Account pursuant to
Section 3.04(a). The Special Servicer shall also be entitled to additional
servicing compensation in the form of a Workout Fee with respect to each
Corrected Mortgage Loan at the Workout Fee Rate on such Mortgage Loan for so
long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if such loan again becomes
a Specially Serviced Mortgage Loan; provided, however, that a new Workout Fee
will become payable if and when such Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated pursuant to Section 7.01(c)
(other than for cause) and if the Majority Subordinate Certificateholder is not
an Affiliate of the Special Servicer or the Master Servicer, it shall retain the
right to receive any and all Workout Fees payable with respect to Mortgage Loans
that became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were Corrected Mortgage Loans at the time of such termination (and
the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such loan ceases to be
payable in accordance with the preceding sentence; provided, however, that at
any time that the Controlling Class Representative is the Master Servicer,
Special Servicer or an Affiliate thereof, any termination pursuant to Section
7.01(c) other than for cause will be deemed to be a resignation by
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the Special Servicer, and, under such circumstances, the Special Servicer will
not have any right to any Workout Fees following such termination. A Liquidation
Fee will be payable with respect to each Specially Serviced Mortgage Loan as to
which the Special Servicer receives any Liquidation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee.
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Mortgage Loan by a Mortgage
Loan Seller for a breach of representation or warranty or for defective or
deficient Mortgage Loan documentation, the purchase of any Specially Serviced
Mortgage Loan by the Master Servicer, the Special Servicer or the Holders of
Class R-I Certificates or the purchase of all of the Mortgage Loans and REO
Properties in connection with an optional termination of the Trust Fund pursuant
to Section 9.01. If, however, Liquidation Proceeds are received with respect to
any Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds that constitute principal and/or interest on such
Mortgage Loan.
The Special Servicer will also be entitled to additional fees in the
form of late fees and other Penalty Charges on Specially Serviced Mortgage
Loans, but only to the extent actually collected from the related Mortgagor and
to the extent that all amounts then due and payable with respect to the related
Mortgage Loan (including interest on Advances) have been paid and are not needed
to pay interest on Advances with respect to that Mortgage Loan. Neither the
Master Servicer nor the Special Servicer shall be entitled to receive Additional
Interest with respect to any ARD Loan.
The Special Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts, other than
management fees in respect of REO Properties, due and owing to any of its
Sub-Servicers and the premiums for any blanket Insurance Policy obtained by it
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Certificate Account or the REO
Account, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the Penalty Charges collected during the related Collection
Period shall first be applied to reimburse the Trustee and the Master Servicer,
in that order for interest at the Reimbursement Rate on Advances with respect to
that Mortgage Loan due on such Distribution Date, and any Penalty Charges
remaining thereafter shall be distributed pro rata to the Master Servicer and
the Special Servicer based upon the amount of Penalty Charges the Master
Servicer or the Special Servicer would otherwise have been entitled to receive
during such period without any such application.
SECTION 3.12. Inspections; Collection of Financial Statements.
(a) The Special Servicer shall (subject to its right to do so
pursuant to the related Mortgage) at the expense of the Trust Fund perform or
cause to be performed a physical
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inspection of a Mortgaged Property as soon as practicable after a related
Mortgage Loan becomes a Specially Serviced Mortgage Loan if no inspection has
been performed within 6 months of the Mortgage Loan becoming a Specially
Serviced Mortgage Loan, and with respect to any other Mortgaged Properties, upon
written notice to the Master Servicer so long as such other Mortgaged Property
has not been inspected by, or on behalf of, the Master Servicer and the Master
Servicer and has not caused such inspection to have been performed. The Master
Servicer shall perform (at its own expense), or shall cause to be performed (at
its own expense), a physical inspection of each Mortgaged Property at such times
and in such manner as are consistent with the Servicing Standard, but in any
event shall inspect each Mortgaged Property securing a Mortgage Note with a
Stated Principal Balance of (a) $2,000,000 or more at least once every 12
months, (b) less than $2,000,000 at least once every 24 months, in each case
commencing in the calendar year 2000; provided, however, that if the Master
Servicer has a reasonable basis to believe that (i) the Debt Service Coverage
Ratio with respect to any Mortgaged Property has decreased by 25% or more from
the Debt Service Coverage Ratio as of the Cut-Off Date or (ii) the Debt Service
Coverage Ratio with respect to any Mortgaged Property has decreased to 1.05x or
less, the Master Servicer shall inspect the related Mortgaged Property as soon
as practicable thereafter if no inspection has been performed for the last six
months (the reasonable cost of which inspection shall be at the expense of the
Trust Fund); provided, further, however, that if any Scheduled Payment becomes
more than 60 days delinquent on the related Mortgage Loan, the Special Servicer
shall inspect the related Mortgaged Property as soon as practicable thereafter
if no inspection has been performed within the last six months (the reasonable
cost of which inspection shall be a Trust Fund expense). The Special Servicer or
the Master Servicer, as applicable, shall prepare or cause to be prepared a
written report of each such inspection detailing the condition of the Mortgaged
Property and specifying the existence of (i) any vacancy in the Mortgaged
Property that the preparer of such report deems material, (ii) any sale,
transfer or abandonment of the Mortgaged Property, (iii) any adverse change in
the condition of the Mortgaged Property that the preparer of such report deems
material and (iv) any visible waste committed on the Mortgaged Property. The
Special Servicer shall have the right to inspect or cause to be inspected (at
its own expense) every calendar year any Mortgaged Property related to a loan
that is not a Specially Serviced Mortgage Loan, provided that the Special
Servicer notifies the Master Servicer prior to such inspection, and provides a
copy of such inspection to the Master Servicer. If the Special Servicer performs
such inspection in accordance with the Servicing Standard and other provisions
of this paragraph (a) and of the related Loan Documents, such inspection shall
satisfy the Master Servicer's inspection obligations pursuant to this paragraph
(a). The Special Servicer and the Master Servicer shall deliver a copy of each
such report prepared by the Special Servicer and the Master Servicer,
respectively, to each of the Rating Agencies, the Underwriters, the Initial
Purchasers and to the Trustee, and the Trustee shall deliver a copy of each such
report, upon request, to the Controlling Class Representative.
(b) Not later than 2:00 P.M. New York time on the second Business
Day after each Determination Date, the Master Servicer shall deliver or cause to
be delivered to the Trustee and the Trustee shall, within three Business Days,
make available to the Rating Agencies the following reports electronically with
respect to the Mortgage Loans (and, if applicable, the related REO Properties)
providing the required information as of the end of the preceding calendar
month: (i) a CMSA Property File Report; (ii) a Comparative Financial Status
Report; (iii) a NOI
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Adjustment Worksheet, (iv) an Operating Statement Analysis Report with respect
to the Mortgage Loans that are not Specially Serviced Mortgage Loans and (v) a
Watch List Report. Not later than 2:00 P.M. New York time on the first Business
Day following each Determination Date, the Special Servicer shall deliver or
cause to be delivered to the Master Servicer the following reports with respect
to the Mortgage Loans (and, if applicable, the related REO Properties) providing
the required information as of such Determination Date: (i) the Delinquent Loan
Status Report with respect to the Mortgage Loans that are Specially Serviced
Mortgage Loans; (ii) an Historical Loss Estimate Report; (iii) an Historical
Loan Modification Report; and (iv) an REO Status Report; and with respect to
Specially Serviced Mortgage Loans, the information required to be delivered by
the Trustee to the Certificateholders pursuant to Section 4.02(a) (xiii) and
(xiv)(C). Not later than 2:00 P.M. New York time on the second Business Day
after each Determination Date, and to the extent it has received information
from the Special Servicer, as applicable, the Master Servicer shall deliver to
the Trustee such information as required to be delivered by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) (vi)(A), (x), (xiii)(A)-(D) and
(xiv)(A),(B),(C) and (E).
(c) The Master Servicer shall deliver to the Trustee the reports set
forth in Section 3.12(b) in an electronic format reasonably acceptable to the
Trustee. The Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Master Servicer pursuant to Section 3.12(b).
The Master Servicer or the Special Servicer, as applicable, shall,
consistent with the Servicing Standard, endeavor to obtain quarterly and annual
operating statements and rent rolls with respect to each of the Mortgage Loans
and REO Properties. With respect to each Mortgaged Property related to a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, the Master
Servicer will prepare and deliver, and with respect to each Mortgage Property
related to a Specially Serviced Mortgage Loan, the Special Servicer will prepare
and deliver, an Operating Statement Analysis Report as set forth in Section
3.12(b) for the related Mortgaged Property or REO Property for or as of the end
the prior calendar month together with copies of the operating statements and
rent rolls for the related Mortgaged Property or REO Property.
Within forty-five days after receipt by the Master Servicer of any
annual operating statements with respect to any Mortgaged Property or REO
Property relating to a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, the Master Servicer shall prepare or update an NOI Adjustment Worksheet
for such Mortgaged Property or REO Property (with the annual operating
statements attached thereto as an exhibit). The Master Servicer shall maintain
one Operating Statement Analysis Report for each Mortgaged Property and REO
Property. The Operating Statement Analysis Report for each Mortgaged Property is
to be updated by the Master Servicer and such updated report shall be delivered
in electronic format to the Trustee within forty-five days after receipt by the
Master Servicer of updated operating statements for such Mortgaged Property. The
Master Servicer will use the "Normalized" column from the NOI Adjustment
Worksheet to update the Operating Statement Analysis Report and will use any
operating statements received with respect to any Mortgaged Property to update
the Operating Statement Analysis Report for such Mortgaged Property, such
updates to be completed in electronic format and delivered to the Trustee within
thirty days after receipt of the necessary information.
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SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee, with a copy to the Paying Agent, each Rating Agency and the
Depositor, on or before April 30th of each year, beginning April 30, 2000, an
Officer's Certificate stating, as to each signer thereof, that (i) a review of
the activities of the Master Servicer or the Special Servicer, as the case may
be, during the preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision, (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has maintained an effective internal
control system relating to its servicing of the Mortgage Loans serviced by it
and has fulfilled in all material respects its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof and (iii) the Master Servicer or the Special Servicer,
as the case may be, has received no notice regarding qualification, or
challenging the status, of any REMIC created hereunder as a REMIC from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. A copy of such
Officer's Certificate may be obtained by Certificateholders upon written request
to the Trustee.
SECTION 3.14. Reports by Independent Public Accountants.
Each of the Master Servicer and the Special Servicer at their own
expense shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Master Servicer or the Special Servicer, as the
case may be, the Trustee, the Paying Agent and each Rating Agency, on or before
April 30th of each year, commencing with Year 2000, a report stating that (i) it
has obtained from the Master Servicer or the Special Servicer, as the case may
be, a letter of representation regarding certain matters from the management of
the Master Servicer or the Special Servicer, as the case may be, which includes
an assertion that the Master Servicer or the Special Servicer, as the case may
be, has maintained an effective internal control system with respect to the
servicing of the Mortgage Loans and has complied with certain minimum mortgage
loan servicing standards (to the extent applicable to commercial, multifamily,
industrial, hotel, nursing home, congregate care, medical office, credit-tenant
lease or manufactured housing community mortgage loans), identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the Master Servicer's
or the Special Servicer's, as the case may be, servicing of commercial,
multifamily, industrial, hotel, nursing home, congregate care, medical office,
credit-tenant lease or manufactured housing community mortgage loans during the
most recently completed calendar year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the American
Institute of Certified Public Accountants, such assertion is fairly stated in
all material respects, subject to such exceptions and other qualifications that,
in the opinion of such firm, such standards require it to report. In rendering
its report such firm may rely, as to the matters relating to the direct
servicing of commercial, multifamily and manufactured housing community mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within 1 year of such statement)
with respect to those Sub-Servicers.
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SECTION 3.15. Access to Certain Information.
(a) Upon ten days prior written notice, to the extent such items are
not in the Trustee's possession the Master Servicer (with respect to the items
in clauses (a), (b), (c), (d) and (h) below), the Special Servicer (with respect
to the items in clauses (e), (f), (g) and (h) below) and the Trustee to the
extent any such items are in its possession, shall make available at their
respective offices primarily responsible for administration of the Mortgage
Loans (or in the case of the Trustee, at its Corporate Trust Office, except with
respect to item (g), which will be maintained at its offices in Minnesota),
during normal business hours, for review by any Certificateholder or any person
identified by a Holder or its designated agent in writing to the Trustee, the
Master Servicer or the Special Servicer, as the case may be, as a prospective
transferee of such an interest, the Trustee, the Rating Agencies, the
Underwriter and anyone specified thereby and the Depositor originals or copies
of the following items: (a) this Agreement and any amendments thereto, (b) all
Statements to Certificateholders delivered to holders of the relevant Class of
Certificates since the Closing Date and all reports, statements and analyses
delivered by the Master Servicer since the Closing Date pursuant to Section
3.12(c), (c) all Officers' Certificates delivered by the Master Servicer since
the Closing Date pursuant to Section 3.13, (d) all accountants' reports
delivered to the Master Servicer since the Closing Date as described in Section
3.14, (e) the most recent property inspection report prepared by or on behalf of
the Special Servicer or the Master Servicer in respect of each Mortgaged
Property pursuant to Section 3.12(a) hereof, (f) the most recent Mortgaged
Property annual operating statements and rent roll, if any, collected by or on
behalf of the Special Servicer and delivered to the Master Servicer, (g) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Special Servicer or the Master Servicer and (h) any and all
Officers' Certificates and other evidence delivered by the Master Servicer or
the Special Servicer, as the case may be, to support its determination that any
Advance was or, if made, would be a Nonrecoverable Advance. Copies of any and
all of the foregoing items will be available from the Trustee, the Master
Servicer or the Special Servicer, as the case may be, upon request at the
expense of the requesting party and shall be provided to any of the Rating
Agencies at no cost pursuant to any of their requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, the Trustee
shall require: (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in the form of Exhibit V hereto (or such
other form as may be reasonably acceptable to the Trustee) generally to the
effect that such Person is a beneficial holder of Book-Entry Certificates and,
subject to the last sentence of this paragraph, will keep such information
confidential (except that such Certificate Owner may provide such information to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit V hereto (or such other form as may
be reasonably acceptable to the Trustee) generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. The Holders of the
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Certificates, by their acceptance thereof, will be deemed to have agreed,
subject to the last sentence of this paragraph, to keep such information
confidential (except that any Holder may provide such information obtained by it
to any other Person that holds or is contemplating the purchase of any
Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner shall be obligated to keep confidential any information
received from the Trustee pursuant to this Section 3.15 that has previously been
made available without restriction via the Trustee's internet website or has
previously been filed with the Commission, and the Trustee shall not require
either of the certifications contemplated by the second preceding sentence in
connection with providing any information pursuant to this Section 3.15 that has
previously been made available via the Trustee's internet website or has
previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Controlling Class Representative, the Rating Agencies and the
Depositor, and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer, the Special Servicer or any Sub-Servicer, as the case may be,
designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriter may require payment from the related Certificateholder of a sum
sufficient to cover the reasonable costs and expenses of providing any such
information or access pursuant to this Section 3.15 to, or at the request of,
the Certificateholders or prospective transferees, including, without
limitation, copy charges and reasonable fees for employee time and for space.
(b) If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the
Trustee, and such application states that the Applicants' desire to communicate
with other Holders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, send, at the Applicants' expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property prior to the close of the third calendar year following
the calendar year in which REMIC I acquires ownership of such REO Property,
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within the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes
of Section 860G(a)(8) of the Code, unless the Special Servicer either (i) is
granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee and the Master
Servicer an Opinion of Counsel (the cost of which shall be paid as a Servicing
Advance), addressed to the Trustee and the Master Servicer, to the effect that
the holding by REMIC I of such REO Property subsequent to such third succeeding
calendar year will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of any REMIC created
hereunder or cause any REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificates are outstanding. If the Special Servicer is
granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such longer period as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence shall be an expense of the Trust
Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish or cause to be established and maintain or
cause to be maintained, one or more REO Accounts, held on behalf of the Trustee
in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property. The REO Account
shall be an Eligible Account. Subject to Section 3.17, the Special Servicer
shall deposit, or cause to be deposited, in the REO Account, within one Business
Day after receipt, all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received by it in respect of an REO Property. Funds in the
REO Account may only be invested in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall give notice to the Trustee and the
Master Servicer of the location of the REO Account when first established and of
the new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. No later than 12:00 p.m. Central
time on the Business Day immediately following each Determination Date, the
Special Servicer shall deposit into the Certificate Account the aggregate of all
amounts received in respect of each REO Property during the most recently ended
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided, however, that the Special Servicer may retain
in such REO Account, in accordance with the Servicing Standard, such portion of
such balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, no later than 3:00 p.m.
Central time on the Business Day immediately following each Determination Date,
the Special Servicer shall provide the Master Servicer with an accounting, on a
loan by loan basis in an electronic format reasonably determined by the Master
Servicer, of amounts deposited in the Certificate Account on such date.
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(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by REMIC I, REMIC II or REMIC III of any
"income from nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of
the Code. Subject to the foregoing, however, the Special Servicer shall have
full power and authority to do any and all things in connection therewith as are
in the best interests of and for the benefit of the Certificateholders (as
determined by the Special Servicer in accordance with the Servicing Standard).
Subject to this Section 3.17, the Special Servicer may earn "net income from
foreclosure property" within the meaning of Section 860G(c) of the Code if it
determines that earning such income is in the best interests of
Certificateholders on a net after-tax basis as compared with net leasing such
REO Property or operating such REO Property on a different basis. In connection
therewith, the Special Servicer shall deposit or cause to be deposited on a
daily basis (and in no event later than the Business Day following receipt of
such funds) in the applicable REO Account all revenues received by it with
respect to each REO Property and the related REO Loan, and shall withdraw or
cause to be withdrawn from the REO Account, to the extent of amounts on deposit
therein with respect to such REO Property, funds necessary for the proper
operation, management, leasing and maintenance of such REO Property, including,
without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease
such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer shall advance
from its own funds such amount as is necessary for such purposes unless the
Master Servicer determines (as evidenced by an Officer's Certificate delivered
to the Trustee, the Paying Agent and the Depositor) such advances would, if
made, constitute Nonrecoverable Servicing Advances. The Special Servicer shall
give the Master Servicer and the Trustee not less than five Business Days'
notice, together with all information
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reasonably requested by the Master Servicer (upon which the Master Servicer may
conclusively rely) before the date on which the Master Servicer is requested to
make any Servicing Advance with respect to an REO Property; provided, however,
that only two Business Days' notice shall be required in respect of Servicing
Advances required to be made on an urgent or emergency basis (which may include,
without limitation, Servicing Advances required to make tax or insurance
payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents
from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other
improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate, any REO Property on
any date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer (or, if required
by Section 3.03(c), the Trustee) as a Servicing Advance) to the effect that such
action will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code at any time that
it is held by the Trust Fund, in which case the Special Servicer may take such
actions as are specified in such Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be
an expense of the Trust Fund) shall be reasonable and customary in
light of the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in
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connection with the operation and management of such REO Property,
including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer for
deposit in the REO Account no less frequently than monthly;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with respect
to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer and the
Trust by such Independent Contractor, and nothing in this Agreement shall be
deemed to limit or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties.
(a) Each of the Master Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Sections 2.03 and 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted Mortgage
Loan and the Special Servicer has determined in good faith that such Defaulted
Mortgage Loan will become subject to foreclosure proceedings, the Special
Servicer shall promptly so notify in writing the Trustee and the Master
Servicer. The Special Servicer and the Master Servicer may at their respective
options purchase such Defaulted Mortgage Loan from the Trust Fund, at a price
equal to the Purchase Price. The Purchase Price for any Defaulted Mortgage Loan
purchased hereunder shall be deposited into the Certificate Account, and the
Trustee, upon receipt of an Officer's Certificate from the Special Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Special Servicer or the Master Servicer, as the case may be, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the Special Servicer or
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the Master Servicer (in that order), as the case may be, ownership of such
Defaulted Mortgage Loan.
(c) The Special Servicer may offer to sell any Defaulted Mortgage
Loan not otherwise purchased by the Special Servicer or the Master Servicer
pursuant to subsection (b) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would produce a greater
recovery on a present value basis than would liquidation of the related
Mortgaged Property. Such offering shall be made in a commercially reasonable
manner. The Special Servicer shall accept the highest cash bid received from any
Person for such Defaulted Mortgage Loan in an amount at least equal to the
Purchase Price therefor; provided, however, that in the absence of any such bid,
the Special Servicer shall accept the highest cash bid received from any Person,
other than an Interested Person, that is determined by the Special Servicer to
be a fair price for such Defaulted Mortgage Loan and that may be in an amount
less than the Purchase Price therefore. In the absence of any bid determined (as
provided below) to be a fair price, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09.
The Special Servicer shall, subject to Section 6.11, use reasonable
best efforts consistent with the Servicing Standard to solicit bids for each REO
Property in such manner as will be reasonably likely to realize a fair price
within the time period provided for by Section 3.16(a). Such solicitation shall
be made in a commercially reasonable manner. The Special Servicer shall accept
the highest cash bid received from any Person for such REO Property in an amount
at least equal to the Purchase Price therefor; provided, however, that in the
absence of any such bid, the Special Servicer shall accept the highest cash bid
received from any Person, other than an Interested Person, that is determined by
the Special Servicer to be a fair price for such REO Property and that may be in
an amount less than the Purchase Price therefore. If the Special Servicer
reasonably believes that it will be unable to realize a fair price for any REO
Property within the time constraints imposed by Section 3.16(a), then the
Special Servicer shall dispose of such REO Property upon such terms and
conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received. Notwithstanding the foregoing, the Special Servicer shall not be
obligated by the foregoing or otherwise to accept the highest bid if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such bid would be in the best interests of the Certificateholders. In the
event that the Special Servicer determines with respect to any REO Property that
the offers being made with respect thereto are not in the best interests of the
Certificateholders and that the end of the period referred to in Section 3.16(a)
with respect to such REO Property is approaching, the Special Servicer shall
seek an extension of such period in the manner described in Section 3.16(a);
provided, however, that the Special Servicer shall use its reasonable best
efforts consistent with the Servicing Standard, to sell any REO Property prior
to two years prior to the Rated Final Distribution Date.
The Special Servicer shall give the Trustee and the Master Servicer
not less than five Business Days' prior written notice of its intention to sell
any Defaulted Mortgage Loan or REO Property. No Interested Person shall be
obligated to submit a bid to purchase any Defaulted Mortgage Loan or REO
Property, and notwithstanding anything to the contrary herein, neither
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the Trustee, in its individual capacity, nor any of its Affiliates may bid for
or purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(c), shall be determined by the Special Servicer, if the highest bidder is a
Person other than the Special Servicer (or the Master Servicer if the Master
Servicer is also the Special Servicer) or an Affiliate of either, and by the
Trustee, if the highest bidder is the Special Servicer (or the Master Servicer
if the Master Servicer is also the Special Servicer) or an Affiliate of either.
In determining whether any bid received from the Special Servicer or an
Affiliate of either represents a fair price for any Defaulted Mortgage Loan or
any REO Property, the Trustee may conclusively rely on the opinion of an
Independent Appraiser or other expert in real estate matters retained by the
Special Servicer at the expense of the Trust Fund. In determining whether any
bid constitutes a fair price for any Defaulted Mortgage Loan or any REO
Property, such appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, the period
and amount of any delinquency on the affected Defaulted Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any Defaulted Mortgage Loan or REO Property shall in all cases be
deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or any REO Property
shall be final and without recourse to the Trustee or the Trust Fund, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(f) Any sale of a Defaulted Mortgage Loan or any REO Properties
shall be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
SECTION 3.19. Additional Obligations of Master Servicer. The Master
Servicer shall deliver to the Paying Agent for deposit in the Distribution
Account on each P&I Advance Date, without any right of reimbursement therefor,
an amount equal to the aggregate of any Prepayment Interest Shortfalls incurred
in connection with voluntary Principal Prepayments received during the most
recently ended Collection Period with respect to the Mortgage Loans (but only up
to the sum of (i) the aggregate Master Servicing Fee and the Retained Fee for
the related Collection Period and (ii) any Prepayment Interest Excess received
during such Collection Period).
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SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(l) below and Section
6.11, the Master Servicer with respect to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan or the Special Servicer with respect to a
Specially Serviced Mortgage Loan may, on behalf of, and for the benefit of, the
Trust Fund, agree to any modification, waiver or amendment of any term of any
Mortgage Loan without the consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan
shall be in writing and shall be considered and effected in accordance with the
Servicing Standard. In addition, neither the Master Servicer nor Special
Servicer shall be required to seek the consent of any Certificateholder or
obtain an Opinion of Counsel in order to approve certain routine modifications,
waivers or amendments of the Loan Documents, including: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the Loan Documents expressly require the
mortgagee thereunder to make such releases upon the satisfaction of certain
conditions shall be made as required by the Loan Documents); (iii) grants of
easements that do not materially affect the use or value of a Mortgaged Property
or the Mortgagor's ability to make any payments with respect to the related
Mortgage Loan; and (iv) any other modifications, waivers or amendments which the
Master Servicer, or the Special Servicer with respect to Specially Serviced
Mortgage Loans, determines, in accordance with the Servicing Standard; provided,
that the Master Servicer, or the Special Servicer with respect to Specially
Serviced Mortgage Loans, has reasonably determined that any such modification,
waiver or amendment (w) would not in any way affect a payment term of the
Certificates or the timing of payments on any of the Certificates, (x) would not
constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise adversely
affect the REMIC status of any REMIC created hereunder (which may, at the option
of the Special Servicer or Master Servicer, as applicable, be evidenced by an
Opinion of Counsel), (y) agreeing to such modification, waiver or amendment
would be consistent with the Servicing Standard, and (z) agreeing to such
modification, waiver or amendment shall not violate the terms, provisions or
limitations of this Agreement or any other document contemplated hereby.
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Master Servicer or the Special Servicer, as applicable, on behalf
of the Trust Fund, shall not agree or consent to any modification, waiver or
amendment of any term of any Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums,
but excluding default interest and amounts payable as additional
servicing compensation) payable thereunder;
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(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or permit a Principal Prepayment during any
period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage
or pursuant to Section 3.09(d), result in a release of the lien of
the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an amount
not less than the fair market value (as determined by an appraisal
by an Independent Appraiser delivered to the Special Servicer at the
expense of the related Mortgagor and upon which the Special Servicer
may conclusively rely) of the property to be released; or
(iv) in the judgment of the Master Servicer or the Special
Servicer, as applicable, otherwise materially impair the security
for such Mortgage Loan or reduce the likelihood of timely payment of
amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third and
fourth paragraphs of this Section 3.20(d) and the rights of the Controlling
Class Representative set forth in Section 6.11, the Special Servicer may (i)
reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium, (ii) reduce the amount of
the monthly payment on any Specially Serviced Mortgage Loan, including by way of
a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of
any right granted under any Mortgage Note or Mortgage relating to a Specially
Serviced Mortgage Loan and/or (iv) accept a principal prepayment on any
Specially Serviced Mortgage Loan during any Lockout Period; provided that (A)
the related Mortgagor is in default with respect to the Specially Serviced
Mortgage Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the sole, good faith judgment of the Special
Servicer, such modification, waiver or amendment would increase the recovery on
the Mortgage Loan to Certificateholders on a net present value basis (the
relevant discounting of amounts that will be distributable to Certificateholders
to be performed at the related Mortgage Rate) and (C) such modification, waiver
or amendment would not both (1) effect an exchange or reissuance of the Mortgage
Loan under Section 1001 of the Code (and the Treasury regulations promulgated
thereunder) and (2) cause any REMIC hereunder to fail to qualify as a REMIC
under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the
third paragraph of this Section 3.20(d), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and the Special Servicer has obtained (i) with
respect to any Mortgage Loan with a Stated Principal Balance equal to $2,000,000
or more, an Appraisal of the related Mortgaged Property or (ii) with respect to
any Mortgage Loan with a Stated Principal Balance less than $2,000,000, an
internal valuation of the related Mortgaged Property performed by the Servicer
in connection with such extension,
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which Appraisal or internal valuation, respectively, supports the determination
of the Special Servicer contemplated by clause (B) of the proviso to the
immediately preceding paragraph.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date or (ii) if the Mortgage Loan is secured by a Ground Lease,
extend the maturity date of such Mortgage Loan beyond a date which is less than
20 years prior to the expiration of the term of such Ground Lease, including
renewal options.
Unless the Special Servicer determines, in accordance with the
Servicing Standard, that such extension or deferral would increase the recovery
to Certificateholders on a net present value basis, the Special Servicer will
not (i) extend the maturity date of any Mortgage Loan which has a Mortgage Rate
below the prevailing interest rate for comparable loans at the time of such
modification as determined by the Special Servicer, unless (A) such Mortgage
Loan is a Balloon Loan, (B) the related Mortgagor has failed to make the Balloon
Payment at its scheduled maturity and (C) such Balloon Loan is not a Specially
Serviced Mortgage Loan (other than by reason of the failure to make its Balloon
Payment) and has not been 30 days delinquent with respect to a Monthly Payment
(other than the Balloon Payment) in the preceding twelve months, in which case
the Special Servicer may permit up to three one-year extensions at the existing
Mortgage Rate for such Mortgage Loan (provided that such limitations of
extensions made at below market rate shall not limit the ability of the Special
Servicer to extend the maturity date of any Mortgage Loan at an interest rate at
or in excess to the prevailing rate for comparable loans at the time of such
modification) or (ii) defer interest due on any Mortgage Loan in excess of 10%
of the Stated Principal Balance of such Mortgage Loan or defer the collection of
interest on any Mortgage Loan without accruing interest on such deferred
interest at a rate at least equal to the Mortgage Rate of such Mortgage Loan.
Each determination of the Special Servicer that an extension or
deferral would increase the recovery to Certificateholders shall be evidenced by
an Officer's Certificate to such effect delivered to the Trustee and the Master
Servicer and the Rating Agencies and describing in reasonable detail the basis
for the Special Servicer's determination. The Special Servicer shall append to
such Officer's Certificate any information including but not limited to income
and expense statements, rent rolls, property inspection reports and appraisals
that support such determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such modification, waiver or
amendment so permit. The foregoing shall in no way limit the Special Servicer's
ability to charge and collect from the Mortgagor costs otherwise collectible
under the terms of the related Mortgage Note and this Agreement together with
interest thereon.
(f) The Master Servicer or Special Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other
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matter or thing, the granting of which is within its discretion pursuant to the
terms of the instruments evidencing or securing the related Mortgage Loan and is
permitted by the terms of this Agreement, require that such Mortgagor pay to it
(i) as additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, and (ii) any
related costs and expenses incurred by it. In no event shall the Special
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(g) The Master Servicer or Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall notify the Master Servicer, the Special
Servicer, the Trustee, the Controlling Class Representative and the Rating
Agencies, in writing, of any modification, waiver or amendment of any term of
any Mortgage Loan (including fees charged the Mortgagor) and the date thereof,
and shall deliver to the Custodian for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment, promptly (and in any event within ten Business Days) following the
execution thereof. Copies of each agreement whereby any such modification,
waiver or amendment of any term of any Mortgage Loan is effected shall be sent
to the Controlling Class Representative and otherwise be made available for
review upon prior request during normal business hours at the offices of the
Special Servicer pursuant to Section 3.15(g) hereof.
(h) If, with respect to any Defeasance Loan, the Master Servicer
shall receive a notice from the related Mortgagor that it intends to defease the
related Defeasance Loan in accordance with the terms thereof, except as set
forth below, the Master Servicer shall (a) promptly respond to such notice in a
manner which would require that the Mortgagor pledge Defeasance Collateral in
lieu of such prepayment pursuant to the terms of the related Mortgage Note, (b)
notify the Trustee and each Rating Agency, the Controlling Class Representative
and the Underwriters in writing of the request to defease a Mortgage Loan, and
(c) upon the written confirmation from Standard & Poor's and, if required, DCR,
described in the next paragraph, take such further action as provided in such
Mortgage Note to effectuate such pledge, including the purchase and perfection
of the Defeasance Collateral in the name of the Trustee, as trustee for the
registered holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1999-C1.
Notwithstanding the above, except as provided in the Mortgage Loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral in lieu of prepayment under a Defeasance Loan if (i) such defeasance
would occur within two years of the Startup Day, (ii) such Defeasance Loan (or
any applicable agreement executed in connection with the related defeasance)
provides that the Mortgagor will be liable for any shortfalls from the
Defeasance Collateral or otherwise become subjected to recourse liability with
respect to the Defeasance Loan, (iii) such defeasance would result in a new
Mortgagor (other than a new entity that will hold the Defeasance Collateral) on
the Defeasance Loan (unless such new Mortgagor is acquiring the Mortgaged
Property that was the initial security for the Defeasance Loan), (iv) the
Mortgagor does not deliver a certification from an independent certified public
accounting firm certifying that the replacement collateral is sufficient to make
all payments required under the related mortgage loan documents when due,
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or (v) any Rating Agency does not confirm in writing to the Master Servicer that
the acceptance of a pledge of the Defeasance Collateral in lieu of a full
prepayment will not result in a downgrade or withdrawal or, in the case of
Standard & Poor's, qualification of the ratings then assigned by it to any Class
of Certificates, provided that no such confirmation shall be required from DCR
if, in addition to the above requirements, (i) the Mortgagor designates a
single-purpose entity (which may be a subsidiary of the Depositor or the Master
Servicer or one of their Affiliates established for the purpose of assuming all
defeased Mortgage Loans) to assume the Mortgage Loan and own the collateral, and
(ii) the Mortgagor provides an Opinion of Counsel that the Trustee has a
perfected security interest in the new collateral. No expenses incurred in
connection with a defeasance shall be borne by the Trust Fund.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage
Loan and subject to the rights of the Special Servicer set forth in this Section
3.20, the Master Servicer shall be responsible for any request by a Mortgagor
for the consent of the mortgagee for a modification, waiver or amendment of any
term with respect to:
(i) Approving routine leasing activity (including any
subordination, standstill and attornment agreements) with respect to
leases for less than the lesser of (a) 20,000 square feet and (b)
20% of the related Mortgaged Property; and
(ii) Approving a change of the property manager at the request
of the related Mortgagor provided that the successor property
manager is not affiliated with the Mortgagor and is a nationally or
regionally recognized manager of similar properties.
(j) With respect to a Mortgage Loan secured by a Mortgaged Property
which is a hospitality property and to the extent the related loan documents do
not prohibit, neither the Master Servicer nor the Special Servicer shall consent
to any change in the franchise affiliation of such Mortgaged Property without
receiving (i) the prior written confirmation from the Rating Agencies that such
action would not result in a downgrading or withdrawal or, in the case of
Standard & Poor's, qualification of the ratings then assigned to the
Certificates and (ii) approval of the Controlling Class Representative; provided
that no prior written confirmation shall be required from DCR unless the Stated
Principal Balance of such Mortgage Loan is at least 2% of the aggregate Stated
Principal Balance of all the Mortgage Loans.
(k) The Master Servicer or the Special Servicer, as applicable,
shall provide written notice to the Controlling Class Representative of the
incurrence of subordinated or secured liens on a Mortgaged Property. Neither the
Master Servicer nor the Special Servicer may approve of the incurrence of
subordinated or secured liens on a Mortgaged Property other than as expressly
permitted without the consent of the lender by the related loan documents
without (i) the prior written confirmation of the Rating Agencies that such
action would not result in a downgrade or withdrawal or, in the case of Standard
& Poor's, qualification of the ratings then assigned to the Certificates and
(ii) the approval of the Controlling Class
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Representative, which if not received by the Master Servicer or the Special
Servicer, as applicable, within ten Business Days of delivery of the related
notice, shall be deemed to be given; provided, the Controlling Class
Representative may not unreasonably withhold such approval and may not cause the
Master Servicer or Special Servicer, as applicable, to violate any terms of this
Agreement or any other agreement contemplated hereby.
(l) Notwithstanding anything to the contrary herein, with respect to
any Mortgage Loan the Stated Principal Balance of which exceeds the lesser of
$15,000,000 or 5% of the aggregate Stated Principal Balance of all Mortgage
Loans, the Master Servicer or Special Servicer, as applicable, (a) will not
consent to the removal or replacement of any property manager or (b) consent to
or approve of (to the extent the related loan documents require the related
Borrower to obtain the consent to or approval of the related mortgagee) any
transfer of equity of (or equivalent ownership interests in) the related
Mortgagor or of any equity owner of the Mortgagor, if, during the term of such
Mortgage Loan, in excess of 49% of such equity (or equivalent) will have been
transferred to any other party, unless (i) in either case, notice thereof shall
have been given to each Rating Agency and DCR shall have confirmed in writing
that such action will not, by itself, result in the downgrade or withdrawal of
its then-current rating of any outstanding Class of Certificates, and (ii) with
respect to clause (b) only, Standard & Poor's shall have confirmed in writing
that such action will not, by itself, result in the qualification, downgrade or
withdrawal of its then-current rating of any outstanding Class of Certificates.
(m) With respect to the Mortgage Loan designated ML-156 (the
"College Square Loan"), any funds that have been placed in an escrow account
(the "College Square Escrow Account") in respect of Staples and that are not
required to be disbursed to the Mortgagor under the related loan documents may
be released to the Mortgagor to be used for tenant improvements, rent abatement
and other expenses in connection with re-letting the Staples space to a tenant
that, in the Master Servicer's judgment in accordance with the Servicing
Standard, is comparable to Staples. Any such funds that are not released to the
Mortgagor shall remain in the College Square Escrow Account for the benefit of
the Certificateholders. On any Distribution Date that the amount due with
respect to the College Square Loan on the related Due Date exceeds the amount
actually received with respect to the College Square Loan during the related
Collection Period, the Master Servicer may, to the extent permitted by the
related escrow agreement, withdraw from the College Square Escrow Account funds
in an amount equal to such shortfall and deposit such funds in the Distribution
Account pursuant to Section 3.05 for distribution to Certificateholders. On the
Distribution Date after the Stated Principal Balance of the College Square Loan
has been reduced to zero, any amounts remaining on deposit in the College Square
Escrow Account shall be disbursed to the Mortgagor.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping; Asset Status
Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall immediately give
notice to the Trustee,
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who shall forward such notice to the Paying Agent, the Underwriters, the Initial
Purchasers, the Rating Agencies and each Holder of a Class G, Class H, Class J
and Class K Certificate, and the Master Servicer shall deliver the related
Mortgage File and Servicing File to the Special Servicer and shall use its
reasonable best efforts consistent with the Servicing Standard to provide the
Special Servicer with all information, documents and records (including records
stored electronically on computer tapes, magnetic discs and the like) relating
to the Mortgage Loan and reasonably requested by the Special Servicer to enable
it to assume its functions hereunder with respect thereto. The Special Servicer
may conclusively rely upon any such documentation or information supplied to it
by the Master Servicer, in the absence of manifest error. The Master Servicer
shall use its reasonable best efforts consistent with the Servicing Standard to
comply with the preceding sentence within 5 Business Days of the occurrence of
each related Servicing Transfer Event and in any event shall continue to act as
Master Servicer and administrator of such Mortgage Loan until the Special
Servicer has commenced the servicing of such Mortgage Loan, which will commence
upon receipt by the Special Servicer of the Mortgage File.
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
Monthly Payments (provided no additional Servicing Transfer Event is foreseeable
in the reasonable judgment of the Special Servicer), and that no other Servicing
Transfer Event is continuing with respect thereto, the Special Servicer shall
promptly give notice thereof, and shall return the related Mortgage File and
Servicing File to the Master Servicer and upon giving such notice, and returning
such Mortgage File and Servicing File to the Master Servicer, the Special
Servicer's obligation to service such Corrected Mortgage Loan shall terminate
and the obligations of the Master Servicer to fully service and administer such
Mortgage Loan shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" and "Servicing File," as appropriate, for
inclusion in the related Mortgage File (with a copy of each such original to the
Master Servicer), and provide the Master Servicer with copies of any additional
related Mortgage Loan information including correspondence with the related
Mortgagor.
(c) No later than 3:00 p.m. New York City time on the Business Day
immediately following each Determination Date, the Special Servicer shall
deliver to the Master Servicer and to each Rating Agency the CMSA Loan Periodic
Update Report (upon which the Master Servicer and the Trustee may conclusively
rely) describing, on a loan-by-loan and property-by-property basis, (1) the
information described in clause (x) of Section 4.02(a) with respect to each
Specially Serviced Mortgage Loan and the information described in clause
(xiii)(A)-(D) and (xiv)(A), (xiv)(B), (xiv)(C) and (xiv)(E) of Section 4.02(a)
with respect to each REO Property, (2) the amount of all payments, Insurance and
Condemnation Proceeds and Liquidation Proceeds received with respect to each
Specially Serviced Mortgage Loan during the related Collection Period, and the
amount of all REO Revenues, Insurance and Condemnation Proceeds and Liquidation
Proceeds received by it with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Master Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Collection Period, (4) the information
described in clauses (x)(C), (x)(F), (xi),
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and (xv)(A) of Section 4.02(a) and (5) such additional information relating to
the Specially Serviced Mortgage Loans and REO Properties as the Master Servicer
reasonably requests to enable it to produce the CMSA Data Files and CMSA
Surveillance Reports and perform its responsibilities under this Agreement which
is in the Special Servicer's possession or is reasonably obtainable by the
Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information in its possession reasonably required by
the Special Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a
Mortgage Loan, the Special Servicer shall deliver to each Rating Agency, the
Controlling Class Representative and the Master Servicer a report (the "Asset
Status Report") with respect to such Mortgage Loan and the related Mortgaged
Property. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standard, that are applicable to the exercise of
remedies as aforesaid and to the enforcement of any related
guaranties or other collateral for the related Mortgage Loan and
whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such
Specially Serviced Mortgage Loan might be returned to performing
status and returned to the Master Servicer for regular servicing or
otherwise realized upon including any proposed actions pursuant to
Section 3.09, 3.18 or 3.20;
(v) the Appraised Value of the Mortgaged Property together
with the assumptions used in the calculation thereof; provided,
however, that in the event that the Master Servicer has obtained an
Appraisal with respect to the related Mortgaged Property within the
12-month period immediately prior to the Servicing Transfer Event
and there has been no material change to the Mortgaged Property that
would affect the validity of such Appraisal, the Special Servicer
may use such prior Appraisal in determining the Appraised Value of
the Mortgaged Property, provided further, that if no such prior
Appraisal is available, the Appraised Value of the Mortgage Property
together with the assumptions used in the calculation thereof shall
be included in the Asset Status Report no later than 60 days after a
Servicing Transfer Event; and
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(vi) such other information as the Special Servicer reasonably
deems relevant in light of the Servicing Standard.
If within 10 Business Days of receiving an Asset Status Report, the
Controlling Class Representative does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law or the terms of the
applicable Mortgage Loan documents. If the Controlling Class Representative
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Controlling Class Representative, the
Rating Agencies and the Master Servicer a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(e) until the earliest to occur of the following events: (i)
the Controlling Class Representative shall fail to disapprove such revised Asset
Status Report in writing within 10 Business Days of receiving such revised Asset
Status Report, (ii) the Special Servicer makes a determination as described
below or (iii) the 60th day after the delivery of the first Asset Status Report.
The Special Servicer may, from time to time, modify any Asset Status Report it
has previously delivered and implement such report, provided that such report
shall have been prepared, reviewed and not rejected pursuant to the terms of
this Section.
Notwithstanding the foregoing, the Special Servicer may, following
the occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a 10-Business Day period (i) if the Special Servicer has
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders or (ii) if the Special Servicer
and the Controlling Class Representative do not agree upon the action to be
taken within 60 days of the delivery of the first Asset Status Report. The
Special Servicer shall have the authority to meet with the Mortgagor for any
Specially Serviced Mortgage Loan and take action consistent with the Servicing
Standard and the related Asset Status Report.
No direction of the Controlling Class Representative, under this
Section 3.21 or otherwise under this Agreement, shall (a) require or cause the
Special Servicer to violate the terms of a Specially Serviced Mortgage Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of any REMIC created hereunder, or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Master Servicer, the Special Servicer,
the Depositor, either Mortgage Loan Seller, the Trust, the Trustee, or their
officers, directors, employees, agents or Control Persons to any claim, suit or
liability, (d) materially expand the scope of the Special Servicer's or the
Master Servicer's responsibilities under this Agreement or cause or direct the
Special Servicer to act in a manner contrary to the Servicing Standard or (e)
cause or direct the Master Servicer to act in a manner contrary to the Servicing
Standard.
(f) Upon receiving notice of (i) the filing of a case under any
present or future federal or state bankruptcy, insolvency or similar law or the
commencing of any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings with respect to a
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Mortgage Loan or the related Mortgagor or (ii) the request by a Mortgagor for
the amendment or modification of a Mortgage Loan other than an amendment or
modification provided for in Sections 3.20(i) or 3.08(f), the Master Servicer
shall promptly give notice thereof, and shall deliver copies of the related
Mortgage File and Servicing File to the Special Servicer and shall use its
reasonable best efforts consistent with the Servicing Standard to provide the
Special Servicer with all information relating to the Mortgage Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Master Servicer
shall use its reasonable best efforts consistent with the Servicing Standard to
comply with the preceding sentence within 5 Business Days of the occurrence of
each such event, and upon receiving such documents and information, the Special
Servicer shall use its reasonable best efforts consistent with the Servicing
Standard to cause the related Mortgagor to cure any default and/or remedy any
such event, work out or modify the Mortgage Loan consistent with the terms of
this Agreement, and/or prepare for such proceedings. Notwithstanding the
foregoing, the occurrence of any of the above-referenced events shall not in and
of itself be considered a Servicing Transfer Event and, unless a Servicing
Transfer Event has occurred with respect to a related Mortgage Loan, the Master
Servicer shall continue to act as Master Servicer and administrator of such
Mortgage Loan and no fees shall be payable to the Special Servicer with respect
to such Mortgage Loan other than any related modification, assumption or
extension fees provided for herein.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement must: (i) be consistent with this Agreement in all
material respects and require a Sub-Servicer to comply with all of the
applicable conditions of this Agreement, including adherence to the Servicing
Standard; (ii) provide that if the Master Servicer, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee shall thereupon assume all
of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Master Servicer, under such agreement, or,
alternatively, may act in accordance with Section 7.02 hereof under the
circumstances described therein (subject to the assumption requirements of
Section 3.22(g) hereof); (iii) provide that the Trustee for the benefit of the
Certificateholders shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Master Servicer or Special Servicer, as applicable,
thereunder as contemplated by the immediately preceding clause (ii)) none of the
Trust Fund, the Trustee, any successor Master Servicer or any Certificateholder
shall have any duties under such Sub-Servicing Agreement or any liabilities
arising therefrom; (iv) permit any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty, (v) not permit a
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund, (vi) not permit a Sub-Servicer to amend Mortgage Loans
without the prior consent of the Master Servicer; and (vii) provide that a
Sub-Servicer cannot foreclose on Mortgaged Property or sell REO Property
relating to any such Mortgage Loans without the prior consent of the Master
Servicer. Any successor Master Servicer, shall, upon becoming successor Master
Servicer, be assigned and shall
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assume the Sub-Servicing Agreements from the predecessor Master Servicer
(subject to the assumption requirements of Section 3.22(g) hereof). In addition,
each such Sub-Servicing Agreement entered into by the Master Servicer may
provide that the obligations of a Sub-Servicer thereunder shall terminate with
respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Master Servicer shall deliver to
the Trustee copies of all the Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer, include actions taken or to
be taken by a Sub-Servicer on behalf of the Master Servicer to the extent
allowed in the related Sub-Servicing Agreement; and, in connection therewith,
any amounts advanced by such Sub-Servicer retained by the Master Servicer to
satisfy the obligations of the Master Servicer hereunder to make Advances shall
be deemed to have been advanced by the Master Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Master
Servicer, and, for so long as they are outstanding, such Advances shall accrue
interest in accordance with Section 3.03(d), such interest to be allocable
between the Master Servicer and such Sub-Servicer pursuant to the terms of the
Sub-Servicing Agreement. For purposes of this Agreement, the Master Servicer
shall be deemed to have received any payment a Sub-Servicer receives.
(b) A Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master
Servicer and Special Servicer for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of a
Sub-Servicer under each of the related Sub-Servicing Agreements. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of the Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer would
require were it the owner of the Mortgage Loans. The Master Servicer shall have
the right to remove a Sub-Servicer in accordance with the terms of each of the
Sub-Servicing Agreements.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of the Master Servicer
under the Sub-Servicing Agreements, the Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to each
Sub-Servicing Agreement and the Mortgage Loans then being serviced thereunder
and an accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable best efforts consistent with the Servicing Standard to
effect the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement or
agreement described in subparagraph (i) below, each of the Master Servicer and
the Special Servicer represents and warrants that it shall remain obligated and
liable to the Trustee and the
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Certificateholders for the performance of its obligations and duties under this
Agreement in accordance with the provisions hereof to the same extent and under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans for which it is responsible, and it shall pay the respective
fees of any Sub-Servicer appointed by it from its own funds in accordance with
the related Sub-Servicing Agreements. In no event shall the Trust Fund bear any
termination fee (if any) required to be paid pursuant to the terms of a
Sub-Servicing Agreement to a Sub-Servicer as a result of a Sub-Servicer's
termination under any Sub-Servicing Agreement. In addition, each of the Master
Servicer and the Special Servicer shall indemnify the Trustee and the Trust Fund
against any loss, damage or liability arising by reason of willful misfeasance,
bad faith or negligence in the performance of duties by a Sub-Servicer appointed
by it or by reason of negligent disregard by a Sub-Servicer of obligations and
duties under this Agreement and any Sub-Servicing Agreement.
(f) The Trustee shall furnish to each Sub-Servicer any powers of
attorney and other documents prepared by the Master Servicer and delivered to
the Trustee and necessary or appropriate to enable such Sub-Servicer to carry
out its servicing and administrative duties under any Sub-Servicing Agreement;
provided, however, that the Trustee shall not be held liable for any negligence,
and shall be indemnified by such Sub-Servicer, with respect to, or misuse of,
any such power of attorney by such Sub-Servicer. Notwithstanding anything
contained herein to the contrary, no Sub-Servicer shall without the Trustee's
written consent: (i) except as relating to a Mortgage Loan which the Master
Servicer or the Special Servicer, as applicable, is servicing pursuant to their
respective duties herein (in which case such servicer shall give notice to the
Trustee thereof), initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or Special Servicer's,
as applicable, representative capacity, or (ii) take any action with the intent
to, or which actually does cause, the Trustee to be registered to do business in
any state.
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer or Special
Servicer, the Trustee or such successor Master Servicer or Special Servicer
shall have the right to terminate such Sub-Servicing Agreement without a fee.
(h) The Special Servicer shall comply with the terms of each
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder. With respect to Mortgage Loans subject to a Sub-Servicing Agreement,
the Special Servicer shall, among other things, remit amounts, deliver reports
and information, and afford access to facilities and information to a
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Master Servicer pursuant to the terms hereof within a
sufficient period of time to allow such Sub-Servicer to fulfill its obligations
under the applicable Sub-Servicing Agreement and in no event later than one
Business Day prior to the applicable Determination Date (or such other date as
specified herein).
(i) Notwithstanding anything to the contrary contained herein, to
the extent consistent with the Servicing Standard, the Master Servicer or
Special Servicer may retain qualified third parties to perform ministerial
functions, including tax monitoring, reconvenyances,
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inspections and similar functions without requiring such party to execute a
Sub-Servicing Agreement; provided, however, that notwithstanding any such
appointment and any other provision herein to the contrary, the Master Servicer
or Special Servicer, as appropriate, will remain liable for the performance of
such functions hereunder.
SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor and the Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Delaware, and the Master Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this
Agreement;
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms
of this Agreement by the Master Servicer, will not violate the
Master Servicer's formation documents as amended and restated, and
by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its
assets, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Master Servicer or its
property is subject;
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement and has duly executed and delivered
this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or
at law;
(v) The Master Servicer is not in default with respect to any
law, any order or decree of any court, or any order, regulation or
demand of any federal, state, municipal or governmental agency,
which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of
the Master Servicer or its properties or might have consequences
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that would materially and adversely affect its ability to perform
its duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit the Master Servicer from entering into this Agreement
or, in the Master Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or
the financial condition of the Master Servicer;
(vii) Each officer, director, member or employee of the Master
Servicer that has responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(c). Neither the Master Servicer nor any of its officers,
directors or employees that is involved in the servicing or
administration of Mortgage Loans has been refused such coverage or
insurance;
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer, or compliance by
the Master Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any consent,
approval, authorization or order which has not been obtained or
cannot be obtained prior to the actual performance by the Master
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability
of the Master Servicer to perform its obligations hereunder;
(ix) The Master Servicer will examine each Sub-Servicing
Agreement and will be familiar with the terms thereof. Any
Sub-Servicing Agreements will comply with the provisions of Section
3.22; and
(x) The Master Servicer represents and warrants that any
custom-made software or hardware designed or purchased or licensed
by the Master Servicer and used by the Master Servicer in the course
of the operation or management of, or the compiling, reporting or
generation of data required by this Agreement does not contain any
deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with
respect to dates after December 31, 1999 or (y) that would cause
such software or hardware to be fit no longer for the purpose for
which it was intended by reason of the changing of the date from
1999 to 2000.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement and shall
survive for as long as any Class of Certificates is outstanding. The Master
Servicer shall indemnify the Trustee, its officers, directors, employees, agents
and Responsible Officers and the Trust Fund and hold each of them harmless
against any losses, damages, penalties, fines, forfeitures, and legal fees and
related costs,
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judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion arising from, or resulting from a material breach of the
Master Servicer's representations and warranties contained in paragraph (a)
above. Such indemnification shall survive any termination or resignation of the
Master Servicer, any termination or resignation of the Trustee and any
termination of the Agreement.
SECTION 3.24. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor and the Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Delaware, and the Special Servicer is in compliance
with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under
this Agreement;
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, will not violate the
Special Servicer's formation documents, as amended and restated, and
by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its
assets, or result in the violation of any law, rule, regulation,
order, judgment or decree which the Special Servicer or its property
is subject;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or
at law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Special
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Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial
condition of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this
Agreement or, in the Special Servicer's good faith and reasonable
judgment is likely to materially and adversely affect either the
ability of the Special Servicer to perform its obligations under
this Agreement or the financial condition of the Special Servicer;
(vii) Each officer, director, member or employee of the
Special Servicer that has or, following the occurrence of a
Servicing Transfer Event, would have responsibilities concerning the
servicing and administration of Mortgage Loans is covered by errors
and omissions insurance in the amounts and with the coverage
required by Section 3.07(c). Neither the Special Servicer nor any of
its officers, directors or employees that is or, following the
occurrence of a Servicing Transfer Event, would be involved in the
servicing or administration of Mortgage Loans has been refused such
coverage or insurance;
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Special Servicer, or compliance by
the Special Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any consent,
approval, authorization or order which has not been obtained or
cannot be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability
of the Special Servicer to perform its obligations hereunder;
(ix) The Special Servicer will examine each related
Sub-Servicing Agreement and will be familiar with the terms thereof.
Any related Sub-Servicing Agreements will comply with the provisions
of Section 3.22; and
(x) The Special Servicer represents and warrants that any
custom-made software or hardware designed or purchased or licensed
by the Special Servicer and used by the Special Servicer in the
course of the operation or management of, or the compiling,
reporting or generation of data required by this Agreement does not
contain any deficiency (x) in the ability of such software or
hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that
would cause such software or hardware to be fit no longer for the
purpose for which it was intended by reason of the changing of the
date from 1999 to 2000.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement and shall
survive for so long as any Class of
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Certificates is outstanding. The Special Servicer shall indemnify the Trustee,
its officers, directors, employees, agents and Responsible Officers and the
Trust Fund and hold them harmless against any losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from a material breach of the Special Servicer's
representations and warranties contained in paragraph (a) above. Such
indemnification shall survive any termination or resignation of the Special
Servicer, any termination or resignation of the Trustee and any termination of
the Agreement.
SECTION 3.25. Interest Reserve Account.
(a) The Trustee shall establish and maintain, or cause to be
established and maintained the Interest Reserve Account as an Eligible Account,
for the benefit of the Certificateholders.
(b) On each P&I Advance Date occurring in February and on any P&I
Advance Date occurring in January in a year which is not a leap year, the Master
Servicer shall remit to the Trustee, for deposit into the Interest Reserve
Account (to the extent it receives such amounts from the Master Servicer), an
amount equal to one day's interest on the Stated Principal Balance of each
Mortgage Loan as of the Distribution Date occurring in the month preceding the
month in which such P&I Advance Date occurs at the related Net Mortgage Rate, to
the extent a full Monthly Payment or P&I Advance is made in respect thereof (all
amounts so deposited in any consecutive February and January (if applicable),
"Withheld Amounts").
(c) On each P&I Advance Date occurring in March, the Trustee shall
withdraw from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January, if any, and February, if any, and shall
remit such amount into Distribution Account. Funds held in the Interest Reserve
Account will be held uninvested.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account, after payment of amounts payable from the Distribution Account in
accordance with Sections 3.05(b)(ii) through (vii) and Section 8.05(a), in each
case to the extent of the remaining portion of the Available Distribution
Amount, in the following order of priority:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with,
all Distributable Certificate Interest in respect of each Class of
Senior Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
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(ii) to distributions of principal to the Holders of the Class
A-1 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1 Certificates pursuant to clause (ii)
above);
(iv) to distributions to the Holders of the Class A-1
Certificates and the Class A-2 Certificates, pro rata, in accordance
with the outstanding Class Principal Balances of each such Class of
Certificates in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to such Classes of Certificates and not
previously reimbursed plus interest on any such Realized Losses or
Additional Trust Fund Expenses, accrued at the applicable
Pass-Through Rate from the date such Realized Losses and/or
Additional Trust Fund Expenses were allocated to such Class;
(v) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(vi) after the Class Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class B
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(vii) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class B Certificates and not previously
reimbursed plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(viii) to distributions of interest to the Holders of the
Class C Certificates in an amount equal to all Distributable
Certificate Interest in respect of such Class
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of Certificates for such Distribution Date, and, to the extent not
previously paid, for all prior Distribution Dates;
(ix) after the Class Principal Balance of the Class B
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class C Certificates, in an amount (not to
exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(x) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class C Certificates and not previously
reimbursed plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xi) to distributions of interest to the Holders of the Class
D Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class D Certificates, in an amount (not to
exceed the Class Principal Balance of the Class D Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xiii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class D Certificates and not previously
reimbursed plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xiv) to distributions of interest to the Holders of the Class
E Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
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(xv) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xvi) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class E Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xvii) to distributions of interest to the Holders of the
Class F Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xviii) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class F Certificates, in an amount (not to
exceed the Class Principal Balance of the Class F Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xix) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class F Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xx) to distributions of interest to the Holders of the Class
G Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxi) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class G Certificates, in an amount (not to
exceed the Class Principal Balance of the Class G Certificates
outstanding immediately prior to such Distribution Date) equal to
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the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class G Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxiii) to distributions of interest to the Holders of the
Class H Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxiv) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to
exceed the Class Principal Balance of the Class H Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxv) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class H Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxvi) to distributions of interest to the Holders of the
Class J Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxvii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class J Certificates, in an amount (not to
exceed the Class Principal Balance of the Class J Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
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(xxviii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class J Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class;
(xxix) to distributions of interest to the Holders of the
Class K Certificates in an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxx) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class K Certificates, in an amount (not to
exceed the Class Principal Balance of the Class K Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxi) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class K Certificates and not previously
reimbursed, plus interest on any such Realized Losses or Additional
Trust Fund Expenses, accrued at the applicable Pass-Through Rate
from the date such Realized Losses and/or Additional Trust Fund
Expenses were allocated to such Class; and
(xxxii) to distributions to the Holders of the Class R-III
Certificates, in an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date
pursuant to the clauses above.
After the Certificate Balance of the Subordinate Certificates has
been reduced to zero, distributions of principal will be made in respect of the
Class A-1 and Class A-2 Certificates, pro rata.
(b) (i) On each Distribution Date, until the Certificate Balances of
the Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates have each been reduced to zero, the Paying Agent shall withdraw any
amounts on deposit in the Distribution Account that represent Percentage
Premiums actually collected on Mortgage Loans or REO Loans during the related
Collection Period and shall distribute to each of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates, for each such Class
an amount equal to the product of (a) a fraction, the numerator of which is the
amount of principal distributed with respect to such Class pursuant to Section
4.01(a) on such Distribution Date, and the denominator of which
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is the total amount of principal distributed to all Classes of Certificates
pursuant to Section 4.01(a) on such Distribution Date, (b) 25% and (c) the total
amount of Percentage Premiums collected during the related Collection Period.
Any Percentage Premiums received during the related Collection Period with
respect to such Mortgage Loans or REO Loans and remitted pursuant to Section
4.01(d), remaining after such distributions shall be distributed on the Class IO
Certificates. On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account any amount on deposit therein that represents Yield
Maintenance Charges actually collected on the Mortgage Loans and any REO Loans
during the related Collection Period and shall distribute such amount in respect
of the Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates as follows: Until the aggregate Certificate Principal Balance of
the Sequential Pay Certificates has been reduced to zero, to the Holders of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates, then entitled to distributions of principal with respect to such
Mortgage Loan on such Distribution Date in the case of each Class thereof, in an
amount equal to the amount of each such Yield Maintenance Charges, multiplied by
(a) a fraction (which in no event may be greater than one) the numerator of
which is equal to the excess, if any, of the Pass-Through Rate of such Class of
Sequential Pay Certificates over the relevant Discount Rate (as defined below),
and the denominator of which is equal to the excess, if any, of the Mortgage
Rate of the prepaid Mortgage Loan over the relevant Discount Rate, and (b) a
fraction, the numerator of which is equal to the amount of principal
distributable on such Class of Sequential Pay Certificates on such Distribution
Date, and the denominator of which is the Principal Distribution Amount for such
Distribution Date. The portion, if any, of the Yield Maintenance Charges
remaining after any such payments to the Holders of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates will be distributed
to the Holders of the Class IO Certificates. The "Discount Rate" applicable to
any Class of Sequential Pay Certificates will be equal to the yield (monthly
equivalent) on the U.S. Treasury issue (primary issue) with a maturity date
closest to the maturity date for the prepaid Mortgage Loan as set forth in The
Wall Street Journal on the date of such prepayment. In the event that there are
two such U.S. Treasury issues (a) with the same coupon, the issue with the lower
yield will be utilized, and (b) with maturity dates equally close to the
maturity date for the prepaid Mortgage Loan, the issue with the earliest
maturity date will be utilized.
(c) On any applicable Distribution Date, any Additional Interest
received in respect of an ARD Mortgage Loan in the related Collection Period and
remitted by the Master Servicer to the Trustee for deposit in the Additional
Interest Distribution Account shall be distributed from the Additional Interest
Distribution Account to the Holders of the Class R-III Certificates; provided,
however, that, such amounts shall be applied first to make up any interest
shortfalls (for such Distribution Date and prior Distribution Dates) with
respect to, and reimburse any Realized Losses and Additional Trust Fund Expenses
previously allocated to, any Class of Regular Certificates.
(d) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such
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Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates) or otherwise by check mailed to
the address of such Certificateholder as it appears in the Certificate Register.
The final distribution on each Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto, which reimbursement is to occur after
the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the Paying
Agent was subsequently notified in writing. If such check is returned to the
Paying Agent, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Paying Agent has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Paying Agent shall, to the extent it is not
required to dispose of such unclaimed funds otherwise in accordance with
applicable state escheatment law, distribute the unclaimed funds to the Holders
of the Class R-III Certificates.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under the Letter of Representations
among the Depositor, the Trustee and the initial Depository.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable
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to the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Paying
Agent shall, no later than five days after the related Determination Date, mail
to each Holder of record on such date of such Class of Certificates a notice to
the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such
other location therein specified, and
(ii) no interest shall accrue on such Certificates from and
after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the first anniversary following
delivery of the second notice, the Paying Agent shall dispose of all unclaimed
funds and other assets in accordance with applicable state law.
(h) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code and may consult
with counsel (the cost of which counsel shall be an expense of the Trust Fund)
in connection therewith. The consent of Certificateholders shall not be required
for such withholding. If the Paying Agent does withhold any amount from interest
or original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Paying Agent shall indicate
the amount withheld to such Certificateholders.
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(i) On each Distribution Date, the portion of the Available
Distribution Amount for such date distributed in respect of any Class of
Certificates (other than the Class IO Certificates) on each Distribution Date
pursuant to Sections 4.01(a), 4.01(b) or 9.01 shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of its corresponding REMIC II
Regular Interest as set forth in the Preliminary Statement hereto; all interest
distributions made in respect of each Component of the Class IO Certificates on
each Distribution Date pursuant to Sections 4.01(a), 4.01(b) or 9.01 shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
the REMIC II Regular Interest corresponding to the Class of Sequential Pay
Certificates having the same alphabetical and numerical (if any) designation as
such Component to the extent of one month's interest accrued at a rate equal to
the Pass-Through Rate for such Component on the Uncertificated Principal Balance
of such REMIC II Regular Interest immediately prior to such Distribution Date.
On each such Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be reduced to equal the Class Principal Balance
of the corresponding Class of Sequential Pay Certificates set forth in the
Preliminary Statement hereto that will be outstanding following such
Distribution Date.
(j) On each Distribution Date, the portion of the Available
Distribution Amount for such date distributed in respect of the Regular
Certificates pursuant to Sections 4.01(a), 4.01(b) or 9.01 shall be deemed to
have first been distributed from REMIC I to REMIC II in respect of the REMIC I
Regular Interests, in each case to the extent of the remaining portions of such
funds, for the following purposes and in the following order of priority:
(i) as deemed distributions of interest in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest in
respect of each such REMIC I Regular Interest for such Distribution
Date and, to the extent not previously deemed distributed, for all
prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, as to each such REMIC I Regular Interest, the
excess, if any, of the Uncertificated Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to such
Distribution Date, over the Stated Principal Balance of the related
Mortgage Loan (or successor REO Loan) that will be outstanding
immediately following such Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I
Regular Interests, in an amount equal to, pro rata in accordance
with, and in reimbursement of previously allocated Realized Losses
and Additional Trust Fund Expenses (with compounded interest),
allocated to each such REMIC I Regular Interest.
(k) Any Prepayment Premium distributed to any Class of Certificates
on any Distribution Date shall, in each case, be deemed to have been distributed
from REMIC I to REMIC II in respect of the REMIC I Regular Interest
corresponding to the prepaid Mortgage Loan or REO Loan, as the case may be, in
respect of which such premium was received.
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SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic
Update Report.
(a) On or prior to each Distribution Date, the Trustee shall prepare
a statement substantially in the form of Exhibit J hereto (a "Distribution Date
Statement") based solely on information provided to it by the Master Servicer or
the Special Servicer (with respect to which the Trustee has no obligation to
verify) , as to the distributions made on such Distribution Date, setting forth:
(i) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates allocable to
Prepayment Premiums;
(iv) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates in
reimbursement of previously allocated Realized Losses and Additional
Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution
Date;
(vi) (A) the aggregate amount of P&I Advances made in respect
of such Distribution Date pursuant to Section 4.03(a) (with a detail
of the amount by which such P&I Advances were reduced as a result of
any Appraisal Reduction Amount), including, without limitation, any
amounts applied pursuant to Section 4.03(a)(ii), and the aggregate
amount of unreimbursed P&I Advances that had been outstanding at the
close of business on the related Determination Date and the
aggregate amount of interest accrued and payable to the Master
Servicer or the Trustee in respect of such unreimbursed P&I Advances
in accordance with Section 4.03(d) as of the close of business on
the related Determination Date and (B) the aggregate amount of
Servicing Advances as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage
Pool outstanding as of the close of business on the related
Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage
Pool outstanding immediately before and immediately after such
Distribution Date;
(ix) the number, aggregate Stated Principal Balance, weighted
average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans as of the close of business on the
related Determination Date;
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(x) the number, aggregate Stated Principal Balance (as of the
close of business on the related Determination Date) and aggregate
Stated Principal Balance (immediately after such Distribution Date)
of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89
days, (C) delinquent more than 89 days, (D) as to which foreclosure
proceedings have been commenced, (E) as to which bankruptcy
proceedings have been commenced, to the extent included by the
Master Servicer or the Special Servicer in its reports, and (F)
Specially Serviced Mortgage Loans (including a description, to the
extent included by the Master Servicer or the Special Servicer in
its reports, of the related Servicing Transfer Event);
(xi) as to each Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof and (B) the Stated
Principal Balance thereof immediately following such Distribution
Date;
(xii) with respect to any Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period
(other than a payment in full), (A) the loan number thereof, (B) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the
portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in connection with such
Liquidation Event;
(xiii) with respect to each REO Property included in the Trust
Fund as of the close of business on the related Determination Date,
(A) the loan number of the related Mortgage Loan, (B) the date of
acquisition of such REO Property by the Trust Fund, (C) the book
value (within the meaning of 12 C.F.R. Section 571.13) of such REO
Property, (D) the aggregate of all REO Revenues and other amounts
received with respect to such REO Property during the related
Collection Period, (E) the portion of the amount in clause (D)
allocable to distributions on the Certificates, and (F) the Stated
Principal Balance of the related REO Loan immediately following such
Distribution Date;
(xiv) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the loan number of the related
Mortgage Loan, (B) a brief description of the basis for the Final
Recovery Determination, (C) the aggregate of all Liquidation
Proceeds and other amounts received in connection with such Final
Recovery Determination, (D) the portion of the amount in clause (C)
allocable to distributions on the Certificates), and (E) the amount
of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xv) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular
Certificates for such Distribution Date;
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(xvi) any unpaid Distributable Certificate Interest in respect
of each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvii) the Pass-Through Rate for each Class of Regular
Certificates for such Distribution Date;
(xviii) the Principal Distribution Amount for such
Distribution Date, separately identifying the respective components
thereof (and, in the case of any Principal Prepayment or other
unscheduled collection of principal received during the related
Collection Period, the loan number for the related Mortgage Loan and
the amount of such prepayment or other collection of principal);
(xix) the aggregate and cumulative amount of all Realized
Losses incurred during the related Collection Period and all
Additional Trust Fund Expenses incurred during the related
Collection Period;
(xx) the aggregate of all Additional Trust Fund Expenses that
were allocated on such Distribution Date;
(xxi) the Class Principal Balance of each Class of Regular
Certificates (other than the Class IO Certificates) and the
Component Notional Amount of each Component outstanding immediately
before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized
Losses and Additional Trust Fund Expenses on such Distribution Date
and any increase therein on such Distribution Date due to the
allocation of Certificate Deferred Interest;
(xxii) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances paid
to the Master Servicer and the Trustee during the related Collection
Period in accordance with Section 4.03(d);
(xxiv) the aggregate amount of interest on Servicing Advances
paid to the Master Servicer, the Trustee and the Special Servicer
during the related Collection Period in accordance with Section
3.03(d);
(xxv) the aggregate amount of Master Servicing Fees, Special
Servicing Fees and Retained Fees paid to the Master Servicer, the
Special Servicer and ORIX during the related Collection Period;
(xxvi) a brief description, to the extent included by the
Master Servicer or the Special Servicer in its reports, of any
waiver, modification or amendment of the terms of any Mortgage Loan
entered into by the Master Servicer or the Special Servicer pursuant
to Section 3.20 during the related Collection Period; and
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(xxviii) the amounts, if any, actually distributed with
respect to the Class R-III Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xiv), (xxiv) and
(xxvi) above, insofar as the underlying information is solely within the control
of the Special Servicer, the Trustee and the Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer.
The Trustee may rely on and shall not be responsible absent manifest
error for the content or accuracy of any information provided by third parties
for purposes of preparing the Distribution Date Statement and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
On or prior to each Distribution Date, based on information provided
in monthly reports prepared by the Master Servicer and the Special Servicer and
delivered to the Trustee in accordance herewith, the Trustee shall make
available to any interested party via its internet website initially located at
"www.ctslink.com/cmbs", (i) the related Distribution Date Statement, (ii) the
CMSA Loan Periodic Update File, Loan Setup File, Bond Level File, and Collateral
Summary File, (iii) the Unrestricted Servicer Reports, and (iv) as a convenience
for interested parties (and not in furtherance of the distribution thereof under
the securities laws), the Prospectus Supplement, the Prospectus and this
Agreement. The Trustee shall also make its Distribution Date Statement available
to any interested party via its fax-on-demand service which can be accessed by
calling (301) 815-6610.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Trustee in accordance herewith, the
Trustee shall make available via its internet website with the use of a
password, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File.
The password shall be given out by the Trustee, upon request, to each holder of
a Certificate, each of the parties to this Agreement, each of the Rating
Agencies, each of the Underwriters, any person identified to the Trustee as a
beneficial owner or prospective purchaser of a Certificate upon receipt from
such person of an investor certification, the form of which is attached hereto
as Exhibit V, and any other person upon the direction of the Depositor.
The Delinquent Loan Status Report, the Historical Loan Modification
Report, the Historical Loss Estimate Report and the REO Status Report are
referred to herein as the "Unrestricted Servicer Reports" and the Watch List,
the NOI Adjustment Worksheet, the Comparative Financial Status Report, and the
Operating Statement Analysis Report are referred to herein as the "Restricted
Servicer Reports".
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its internet website
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and assumes no responsibility therefor. In addition, the Trustee may disclaim
responsibility for any information distributed by the Trustee for which it is
not the original source.
In connection with providing access to the Trustee's internet
website, the Trustee may require online registration and the acceptance of a
disclaimer. Neither the Trustee nor the Master Servicer nor the Special Servicer
shall be liable for the dissemination of information in accordance herewith.
Within a reasonable period of time after the end of each calendar
year, the Trustee, upon request, shall send to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to Section 4.02(a)(i), (ii), (iii) and (iv) above and such other
information as may be required to enable such Certificateholders to prepare
their federal income tax returns. Such information shall include the amount of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust. Such requirement shall be deemed to be
satisfied to the extent such information is provided pursuant to applicable
requirements of the Code from time to time in force.
On each Distribution Date, the Trustee shall provide or make
available to The Trepp Group (at 477 Madison Avenue, 18th Floor, New York, New
York 10022, or such other address as The Trepp Group may hereafter designate), a
copy of the reports made available to the Holders of the Regular Certificates on
such Distribution Date and a statement setting forth the amounts, if any,
actually distributed with respect to the Class R-I Certificates on such
Distribution Date.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall make such statements, reports and/or other
written information available to such Certificate Owner upon the request of such
Certificate Owner and at its expense made in writing to the Corporate Trust
Office (accompanied by current verification of such Certificate Owner's
ownership interest).
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Trustee or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
(b) Not later than 2:00 P.M. New York City time on the second
Business Day following each Determination Date the Master Servicer shall furnish
to the Trustee, the Depositor, the Underwriters and the Rating Agencies, by
electronic transmission (or in such other
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form to which the Trustee, the Underwriters or the Depositor, as the case may
be, and the Master Servicer may agree), with a hard copy of such transmitted
information to follow to the Underwriter and the Depositor not later than the
third Business Day following such Determination Date and upon request, to the
Trustee and the Rating Agencies, an accurate and complete CMSA Loan Periodic
Update Report providing the required information for the Mortgage Loans as of
such Determination Date.
To the extent the Depositor or the Controlling Class Representative
requires additional information not required pursuant to the terms of this
Agreement, the Depositor or the Controlling Class Representative may request
(which request may only be made one time per month unless an Event of Default
has occurred and is continuing) of the Master Servicer or Special Servicer, as
applicable, that such information be delivered to the Depositor or the
Controlling Class Representative on the Distribution Date following the
Depositor's or the Controlling Class Representative's reasonable request
therefor (or if such request is made after the fourth Business Day preceding
such Distribution Date, the next succeeding Distribution Date), to the extent
such information is readily available to the Master Servicer or Special Servicer
without additional cost or expense for which the Master Servicer or Special
Servicer will not be reimbursed, the Master Servicer or the Special Servicer, as
applicable, shall provide such information to any requesting party.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update Report provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer shall have no obligation to provide such
information until it has received such information from the Special Servicer,
shall not be in default hereunder due to a delay in providing the CMSA Loan
Periodic Update Report caused by the Special Servicer's failure to timely
provide any report required under this Agreement and may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer.
SECTION 4.03. P&I Advances.
(a) On or before 4:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall (i) apply amounts held in the Certificate
Account received after the Determination Date with respect to the related
Collection Period or for future distribution to Certificateholders in subsequent
months in discharge of its obligation to make P&I Advances, or (ii) if such
amounts are insufficient to discharge such obligation, subject to Section
4.03(c) below, remit from its own funds to the Paying Agent for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date. The Master Servicer
may also make P&I Advances in the form of any combination of clauses (i) and
(ii) above aggregating the total amount of P&I Advances to be made. Any amounts
held in the Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Certificate Account on or
before the next succeeding
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Determination Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and interest in respect of which
such P&I Advances were made). If, as of 4:00 p.m., New York City time, on any
P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy number (214)
237-2040 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone number (214) 237-2010 (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 5:00 p.m., New York City time, on such
P&I Advance Date. If the Trustee does not receive the full amount of such P&I
Advances by 10:00 a.m., New York City time, on the related Distribution Date,
then, subject to Section 4.03(c), (i) the Trustee shall, no later than 11:00
a.m., New York City time, on such related Distribution Date make the portion of
such P&I Advances that was required to be, but was not, made by the Master
Servicer on such P&I Advance Date, and (ii) the provisions of Sections 7.01 and
7.02 shall apply.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Master Servicer with respect to any
Distribution Date shall equal the aggregate of: (i) all Scheduled Payments (in
each case, net of the Master Servicing Fee and, if ORIX is the Master Servicer,
the Retained Fee) other than Balloon Payments, that were due during the related
Collection Period and not received as of the close of business on the Business
Day preceding the related P&I Advance Date and (ii) with respect to each
Mortgage Loan as to which the related Balloon Payment was due during or prior to
the related Collection Period and was delinquent as of the end of the related
Collection Period (including any REO Loan as to which the Balloon Payment would
have been past due), an amount equal to the Assumed Scheduled Payment therefor.
Subject to subsection (c) below, the obligation of the Master Servicer and the
Trustee to make such P&I Advances is mandatory, and with respect to any Mortgage
Loan or REO Loan, shall continue until the Distribution Date on which the
proceeds, if any, received in connection with a Liquidation Event with respect
thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers' Certificate delivered to the Trustee, the Controlling
Class Representative and the Depositor on or before the related P&I Advance
Date, setting forth the basis for such determination, together with any other
information, including Appraisals or, if no such Appraisal has been performed
pursuant to this Section 4.03(c), a copy of an Appraisal of the related
Mortgaged Property performed within the twelve months preceding such
determination, related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Properties, engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. The Trustee shall
be entitled to rely, conclusively, on any determination by the Master Servicer
that a P&I Advance, if made, would be a Nonrecoverable Advance; provided,
however, that if the
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Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance, the Trustee shall make such Advance within the time
periods required by Section 4.03(a) unless the Trustee, in good faith, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable Advance. The Trustee in determining whether or
not a P&I Advance previously made is, or a proposed P&I Advance, if made, would
be, a Nonrecoverable Advance shall be subject to the standards applicable to the
Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), if default interest and late charges on the related Mortgage Loan shall
be insufficient therefor, the Master Servicer shall be entitled to pay itself
and the Trustee out of any amounts then on deposit in the Certificate Account,
interest at the Reimbursement Rate in effect from time to time compounded
monthly, accrued on the amount of such P&I Advance from the date made to but not
including the date of reimbursement; provided, however, that no interest shall
accrue (a) with respect to the Mortgage Loans designated ORIX-3433, ORIX-3436,
ORIX-3430, ORIX-3435, ORIX-3431 and ORIX-3429, from the date the Master Servicer
or the Trustee makes a P&I Advance through the 15th of the month during which
such P&I Advance is made and (b) with respect to the Mortgage Loan designated
ORIX-3432, from the date the Master Servicer or the Trustee makes a P&I Advance
through the 20th of the month during which such P&I Advance is made. The Master
Servicer shall reimburse itself or the Trustee, as applicable, for any
outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose have been received by the Master Servicer, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding Late Collection was received by the Master
Servicer as of the related P&I Advance Date.
(e) Notwithstanding the foregoing, none of the Master Servicer and
the Trustee shall be required to make an Advance for (i) Additional Interest,
Penalty Charges, Prepayment Premiums, or the portion of any Prepayment Interest
Shortfalls not offset by the portion of the Master Servicing Fee and the
Retained Fee that represents compensation to the Master Servicer, (ii) with
respect to any Distribution Date and any Mortgage Loan subject to an Appraisal
Reduction Event, the Appraisal Reduction Amount and (iii) any Advance that, upon
making of such Advance, would become a Nonrecoverable Advance.
SECTION 4.04. Allocation of Realized Losses, Additional Trust Fund
Expenses and Appraisal Reductions.
(a) On each Distribution Date, prior to the distributions to be made
on such date pursuant to Section 4.01, the Paying Agent shall allocate to the
respective Classes of Regular Certificates as follows the aggregate of all
Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-Off Date through the end of the related Collection
Period, and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate Certificate Principal Balance of the Regular Certificates as of
such Distribution Date (after taking into account all of the distributions made
on such Distribution Date pursuant to Section 4.01 and all allocations of
Certificate Deferred Interest pursuant to Section 4.07), exceeds (ii) the
aggregate
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Stated Principal Balance of the Mortgage Pool to be outstanding immediately
following such Distribution Date: first, to the Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates, in that order,
until the respective remaining Class Principal Balance of each such Class has
been reduced to zero and second, to the Class A-1 and Class A-2 Certificates,
pro rata, in accordance with the outstanding Class Principal Balances of such
Classes of Certificates, until the remaining Class Principal Balance of each
such Class has been reduced to zero. All Realized Losses and Additional Trust
Fund Expenses, if any, that have not been allocated to the Regular Certificates
as of the Distribution Date on which the aggregate Certificate Principal Balance
of such Certificates has been reduced to zero, shall be deemed allocated to the
Residual Certificates.
(b) Each Realized Loss and Additional Trust Fund Expense, if any,
allocated to any Class of Sequential Pay Certificates on any Distribution Date
shall be deemed to have first been allocated to the corresponding class of REMIC
II Regular Interest as set forth in the Preliminary Statement hereto with a
corresponding reduction in the Uncertificated Principal Balance of such REMIC II
Regular Interest.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(j),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to equal the
Stated Principal Balance of the related Mortgage Loan or REO Loan, as the case
may be, that will be outstanding immediately following such Distribution Date.
Such reductions shall be deemed to be an allocation of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Paying Agent shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Paying Agent shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Paying Agent of such
amounts shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations,
and the Master Servicer or the Trustee, as applicable, shall remain responsible
for all acts and omissions of any such agent or attorney-in-fact (other than
with
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respect to limited powers-of-attorney delivered by the Trustee to the Master
Servicer or Special Servicer pursuant to Section 2.03(b) and 3.01(b), as
applicable, in which case the Trustee shall have no such responsibility). The
Master Servicer or the Trustee shall have all the limitations upon liability and
all the indemnities for the actions and omissions of any such agent or
attorney-in-fact that it has for its own actions hereunder pursuant to Article
VI or Article VIII hereof, as applicable, and any such agent or attorney-in-fact
shall have the benefit of all the limitations upon liability, if any, and all
the indemnities provided to the Master Servicer under Section 6.03 or to the
Trustee under Sections 8.01, 8.02 and 8.05, as applicable.
SECTION 4.07. Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable
to a Class of Sequential Pay Certificates shall be reduced by an amount equal to
the amount of Mortgage Deferred Interest, to the extent not advanced by the
Master Servicer or the Trustee, for all Mortgage Loans for the Due Dates
occurring in the related Collection Period allocated to such Class of
Certificates, such Mortgage Deferred Interest to be allocated first to the Class
K Certificates, second to the Class J Certificates, third to the Class H
Certificates, fourth to the Class G Certificate, fifth to the Class F
Certificates, sixth to the Class E Certificates, seventh to the Class D
Certificates, eighth to the Class C Certificates, ninth to the Class B
Certificates, and tenth, pro rata (based upon Accrued Certificate Interest), to
the Class A-1 and Class A-2 Certificates, in each case up to the respective
Accrued Certificate Interest for each such Class of Certificates for such
Distribution Date.
(b) On each Distribution Date, the Class Principal Balances of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates shall be increased by the amount of
the Certificate Deferred Interest allocated to such Class of Certificates on
such Distribution Date pursuant to Section 4.07(a) above. The aggregate increase
in the Class Principal Balances of such Classes of Sequential Pay Certificates
on any Distribution Date pursuant to this Section shall not exceed the aggregate
Mortgage Deferred Interest added to the outstanding principal balance of the
Mortgage Loans with respect to such Distribution Date.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.07(a) to a Class of Sequential Pay Certificates shall be allocated in
reduction of the amount of Uncertificated Distributable Interest with respect to
the corresponding Class of REMIC II Regular Interests as set forth in the
Preliminary Statement hereto. On each Distribution Date, Certificate Deferred
Interest that is added to the Class Principal Balance of a Class of Sequential
Pay Certificates pursuant to Section 4.07(b) shall be added to the
Uncertificated Principal Balance of the corresponding Class of REMIC II Regular
Interests as set forth in the Preliminary Statement hereto.
(d) With respect to any Distribution Date, the amount of Mortgage
Deferred Interest, to the extent not advanced by the Master Servicer or the
Trustee, attributable to any
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Mortgage Loan shall be allocated in reduction of the amount of Uncertificated
Distributable Interest with respect to the REMIC I Regular Interest that relates
to such Mortgage Loan.
(e) With respect to any Distribution Date, the amount of Mortgage
Deferred Interest, to the extent not advanced by the Master Servicer or the
Trustee, attributable to any Mortgage Loan shall be added to the Uncertificated
Principal Balance of the REMIC I Regular Interest that relates to such Mortgage
Loan.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-15; provided, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Registered Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Regular Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances or initial Certificate
Notional Amount, as the case may be, as of the Closing Date of not less than
$1,000 in the case of the Registered Certificates, and not less than $250,000 in
the case of the Class G, Class H, Class J and Class K, and in each such case in
integral multiples of $1 in excess thereof. The Residual Certificates will not
have a Certificate Principal Balance or Certificate Notional Amount.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatories of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113 Attn: Corporate Trust Services (CMBS) - MLMI
1999-C1) may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee is hereby initially appointed (and hereby agrees to
act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument
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delivered to the Depositor, the Trustee (if the Trustee is not the Certificate
Registrar), the Special Servicer and the Master Servicer, any other bank or
trust company to act as Certificate Registrar under such conditions as the
predecessor Certificate Registrar may prescribe, provided that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master Servicer and
the Special Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively upon
a certificate of the Certificate Registrar as to the information set forth in
the Certificate Register. Upon written request of any Certificateholder made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar shall promptly furnish
such Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor or its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1 hereto, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit F-2 hereto or, with respect to any such
Certificate which is not a Residual Certificate, either Exhibit F-2 or Exhibit
F-3 hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective transferee on which such Opinion of Counsel
is based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and upon
acquisition of such a Certificate shall be deemed to have agreed to, indemnify
the Trustee, the Certificate Registrar and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(c) No transfer of a Subordinated Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or
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the prohibited transactions restrictions of Section 4975 of the Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing such
Subordinated Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute "plan assets" of a Plan); provided, that (i) such a transfer may be
made to an insurance company general account with respect to any Class of
Subordinated Certificates which is eligible for exemptive relief under Section
III of Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"), provided that
the proposed transferee certifies that the conditions of Sections I, III and IV
of PTE 95-60 are satisfied with respect to such transfer, and (ii) such a
transfer may be made with respect to a Class G, Class H, Class J or Class K
Certificate if the prospective transferee provides the Certificate Registrar
with a certification of facts and an Opinion of Counsel (upon which the
Certificate Registrar may conclusively rely) which establish to the satisfaction
of the Certificate Registrar that such transfer will not result in a violation
of Section 406 of ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code. As a condition to its
registration of the transfer of a Subordinated Certificate, the Certificate
Registrar shall require the prospective transferee of such Certificate to
execute a certification affidavit in the form attached as Exhibit G hereto.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii)(A) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Master Servicer, the
Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of a
Residual Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of an affidavit and
agreement substantially in the form attached hereto as Exhibit
H-1 (in any case, a "Transfer Affidavit and Agreement"), from
the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, and upon which the Certificate
Registrar may, in the absence of actual knowledge by a
Responsible Officer of either the Trustee or the Certificate
Registrar to the contrary, conclusively rely, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Certificate,
it will
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endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to
be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of the Certificate Registrar has
actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of a Residual Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership
Interest in such Certificate, agrees to give the Master
Servicer and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in
a Residual Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 5.02(d) shall be restored, to the extent permitted by law,
to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicer or the Certificate Registrar shall
be under any liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the restrictions in this
Section 5.02(d) and to the extent that the retroactive restoration
of the rights of the Holder of such Residual Certificate as
described in clause (ii)(A) above shall be invalid, illegal or
unenforceable, then the Certificate Registrar shall have the right,
but not the obligation, without notice to the Holder or any prior
Holder of such Residual
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Certificate, to sell such Residual Certificate to a qualified
purchaser selected by the REMIC Administrator on such terms as the
Certificate Registrar may choose. Such purported Transferee shall
promptly endorse and deliver such Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such purchaser
may be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Paying Agent to such purported
Transferee. The terms and conditions of any sale under this clause
(ii)(B) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the
Internal Revenue Service and to those Persons specified by the REMIC
Provisions any information in its possession which is necessary to
compute any tax imposed (A) as a result of the Transfer of a
Residual Certificate to any Person who is a Disqualified
Organization, including the information described in Treasury
Regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect
to the "excess inclusions" of such Residual Certificate and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record
holders at any time any Person which is a Disqualified Organization,
and the Master Servicer and the Special Servicer shall furnish to
the Certificate Registrar all information in its possession
necessary for the Certificate Registrar to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Certificate
Registrar, the Master Servicer and the Special Servicer for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided
that there shall have been delivered to the Certificate Registrar
and the Master Servicer the following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to downgrade
or withdraw its then-current rating of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master
Servicer, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trust Fund), to the
effect that doing so will not cause any of REMIC I, REMIC II
or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not
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a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Residual Certificate to a Person
that is not a Permitted Transferee.
(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide each such Person with an updated copy of the
Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Certificates, other than the Residual
Certificates, shall initially be issued as one or more Certificates registered
in the name of the Depository or its nominee and, except as provided in Section
5.03(c) below, transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate
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Owners of their respective Ownership Interests in the Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing each such Certificate Owner. Each
Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Certificates for purposes of evidencing ownership of any Class of
Registered Certificates, the registered holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly, shall be
entitled directly to receive payments on, to exercise Voting Rights with respect
to, and to transfer and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or
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indemnity as may be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person,
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in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, the Master Servicer or the
Special Servicer, shall be the successor of the Depositor, the Master Servicer
or the Special Servicer, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master Servicer
or the Special Servicer unless (i) as evidenced in writing by the Rating
Agencies, such succession will not result in downgrading or withdrawal or, in
the case of Standard & Poor's, qualification, of the ratings then assigned by
the Rating Agencies to any Class of Certificates; and (ii) in the case of a
successor or surviving Person to the Master Servicer, such successor or
surviving Person shall have a net worth (or, in the case of the initial Master
Servicer, such successor or surviving Person and its immediate parent shall have
a consolidated net worth) of not less than $15,000,000.
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation, warranty or covenant made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, officer, employee or agent of the Depositor, the Master Servicer or
the Special Servicer may rely in good faith on any document of any kind which,
prima facie, is properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Master Servicer, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund against any loss, liability or reasonable expense incurred in
connection with this Agreement or the Certificates, other than any loss,
liability or expense: (i) specifically required to be borne by such party
without right of reimbursement pursuant to the terms hereof; (ii) incurred in
connection with any breach by such party of a representation, warranty or
covenant made herein; or (iii) incurred by reason of willful misfeasance, bad
faith or negligence on the part of such party in the performance of obligations
or duties hereunder. None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action unless such action is related to its respective duties under this
Agreement and, unless it is specifically required hereunder to bear the costs of
such legal action, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer or the
Special Servicer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to the enforcement and/or protection of
the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall constitute a Servicing
Advance, and the
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Depositor, the Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor from the Certificate Account as provided in Section 3.05. In
no event shall the Master Servicer or the Special Servicer be liable or
responsible for any action taken or omitted to be taken by the other of them or
by the Depositor, the Trustee or any Certificateholder, subject to the
provisions of the last paragraph of Section 8.05.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer; Assignment of Rights and Obligations.
The Master Servicer and, subject to Section 6.09, the Special
Servicer shall resign from the obligations and duties hereby imposed on it, upon
a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. Each of the Master Servicer and the
Special Servicer shall have the right to resign at any other time and to assign
its rights and obligations pursuant to this Agreement to a third party;
provided, that, with respect to the successor to either the Master Servicer or
the Special Servicer, (i) each of the Rating Agencies confirms in writing that
the successor's appointment or the assignment by the Master Servicer or Special
Servicer, as the case may be, will not result in a withdrawal, qualification or
downgrade of any rating or ratings assigned to any Class of Certificates, (ii)
the resigning or assigning party pays all costs and expenses in connection with
such transfer, (iii) the successor accepts appointment prior to the
effectiveness of such resignation; and (iv) in the event of assignment by the
Master Servicer to a third party, such third party satisfies all of the
requirements for a successor Master Servicer set forth in Section 7.02(a).
Consistent with the foregoing and except as provided in the
preceding paragraph, neither the Master Servicer nor the Special Servicer shall,
except as expressly provided herein, assign or transfer any of its rights,
benefits or privileges hereunder to any other Person, or, except as provided in
Sections 3.22 and 4.06, delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by it hereunder unless the requirements for resignation set forth in
the immediately preceding paragraph are met. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the entire amount of compensation payable to
the Master Servicer or the Special Servicer, as the case may be, that accrues
pursuant hereto from and after the date of such transfer shall, except as
otherwise provided herein, be payable to such successor.
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SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained thereby in respect of its rights and
obligations hereunder and access to officers thereof responsible for such
obligations. Upon reasonable request, each of the Master Servicer and, to the
extent relevant to the performance of the Special Servicer's duties hereunder,
the Special Servicer shall furnish the Depositor and the Trustee with its most
recent financial statements and such other information as it possesses, and
which it is not prohibited by applicable law or contract from disclosing,
regarding its business, affairs, property and condition, financial or otherwise,
except to the extent such information constitutes proprietary information or is
subject to a privilege under applicable law. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer and the Special
Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer or Special
Servicer hereunder or exercise the rights of the Master Servicer and the Special
Servicer hereunder; provided, however, that neither the Master Servicer nor the
Special Servicer shall be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee and, further provided, that
the Depositor may not exercise any right pursuant to Section 7.01 to terminate
the Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
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SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.02 to serve as Special Servicer hereunder and to replace any existing Special
Servicer or any Special Servicer that has resigned or otherwise ceased to serve
as Special Servicer by the delivery to the Trustee, the Master Servicer and the
existing Special Servicer of a written notice stating such designation,
provided, that the Controlling Class shall not re-appoint, or allow the
continuing performance by, a Special Servicer who has resigned or otherwise
ceased to serve as Special Servicer or as to which an Event of Default has
occurred and the parties hereto have exercised their rights under section 7.02
hereof. The Trustee shall, promptly after receiving any such notice, deliver to
the Rating Agencies an executed Notice and Acknowledgment in the form attached
hereto as Exhibit I-1. Any costs or expenses incurred in connection with the
termination and replacement by such Holder or Holders of any Special Servicer,
for which the circumstances of such replacement or termination are other than
those resulting from the resignation or termination of the Special Servicer
pursuant to Sections 6.04 and 7.01, respectively, shall be borne by the
Controlling Class. If such Holders have not replaced the Special Servicer within
30 days of such Special Servicer's resignation or the date such Special Servicer
has ceased to serve in such capacity the Trustee shall utilize its best efforts
to designate a successor Special Servicer meeting the requirements set forth in
Sections 6.02 and 7.02. The designated Person shall become the Special Servicer
on the date that the Trustee shall have received written confirmation from all
of the Rating Agencies that the appointment of such Person will not result in
the qualification, downgrading or withdrawal of the rating or ratings assigned
to one or more Classes of the Certificates. The appointment of such designated
Person as Special Servicer shall also be subject to receipt by the Trustee of
(1) an Acknowledgment of Proposed Special Servicer in the form attached hereto
as Exhibit I-2, executed by the designated Person and (ii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 6.09 and all other applicable provisions of this
Agreement, that upon the execution and delivery of the Acknowledgment of
Proposed Special Servicer the designated Person shall be bound by the terms of
this Agreement and that this Agreement shall be enforceable against the
designated Person in accordance with its terms (subject to customary bankruptcy
and insolvency qualifications). Any existing Special Servicer shall be deemed to
have resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that the resigning or terminated Special
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, including,
without limitation, any Workout Fee or proportionate share thereof, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
resignation. Such resigning Special Servicer shall cooperate with the Trustee
and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer within two Business Days to the replacement
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the REO
Account or
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delivered to the Master Servicer or that are thereafter received with respect to
Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with the same rights it would have (except as otherwise set
forth in the definition of "Certificateholder") if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, the Master Servicer or the Special Servicer may (but need not) seek
the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.10, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or the Special Servicer
or an Affiliate of the Master Servicer or the Special Servicer, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object in writing to
the proposal described in the written notice within ten Business Days, and if
the Master Servicer or the Special Servicer shall act as proposed in the written
notice within fifteen (15) days after the expiration of such notice period, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to reimbursement from the Master Servicer or the Special Servicer,
as applicable, for the reasonable expenses of the Trustee incurred pursuant to
this paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, but rather
in the case of unusual circumstances.
SECTION 6.11. The Controlling Class Representative.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may select a representative
(the "Controlling Class Representative") from whom the Special Servicer will
seek advice and approval and take direction under certain circumstances as
described herein. The Controlling Class Representative will be entitled to
advise the Special Servicer with respect to the following actions of the Special
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Servicer, and the Special Servicer will not be permitted to take any of the
following actions unless the Controlling Class Representative has approved such
action in writing within ten Business Days after receipt of such notice
(provided that if such written notice has not been received by the Special
Servicer within ten Business Days, then the Controlling Class Representative's
approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a monetary term of a Mortgage Loan other
than a modification consisting of the extension of the maturity date of a
Mortgage Loan for one year or less;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws;
(v) any acceptance of substitute or additional collateral or release
of collateral for a Mortgage Loan, except as otherwise required under the
Mortgage Loan documents;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause;
(vii) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan; and
(viii) any acceptance of a discounted pay-off.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein; provided that no such direction or approval rights
provided in this Section 6.11 may require or cause the Special Servicer to
violate any provision of this Agreement or the REMIC Provisions, including the
Special Servicer's obligation to act in accordance with the Servicing Standard
or expose the Master Servicer, the Special Servicer, the Trust Fund or the
Trustee to liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder. Any out-of-pocket expenses incurred by the Special
Servicer in connection with its obtaining the approval of the Controlling Class
Representative shall be borne by the Special Servicer from its own funds and
shall not be expenses of the Trust Fund.
In the event the Special Servicer determines that any direction or
objection of the Controlling Class Representative would cause the Special
Servicer to violate this Agreement, expose the Master Servicer, the Special
Servicer, the Trust Fund or Trustee to liability or materially expand the scope
of the Special Servicer's responsibilities, the Special Servicer shall notify
the Controlling Class Representative, the Rating Agencies and the Trustee. The
sole
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remedy of the Controlling Class Representative shall be to seek removal of the
Special Servicer and the Special Servicer shall have no other liability with
respect to such action. Any such removal shall be deemed a removal of the
Special Servicer without cause.
The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the exercise of its rights
or by reason of reckless disregard in the exercise of its rights. By its
acceptance of a Certificate, each Certificateholder confirms its understanding
that the Controlling Class Representative may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates, and that the Controlling Class Representative may have special
relationships and interests that conflict with those of holders of some Classes
of the Certificates and, absent willful misfeasance, bad faith or gross
negligence on the part of the Controlling Class Representative, agrees to take
no action against the Controlling Class Representative or any of its officers,
directors, employees, principals or agents as a result of such a special
relationship or conflict, and that the Controlling Class Representative will not
be deemed to have been grossly negligent or reckless, or to have acted in bad
faith or engaged in willful misfeasance or to have recklessly disregarded any
exercise of its rights by reason of its having acted solely in the interests of
the Controlling Class and that the Controlling Class Representative will have no
liability whatsoever for having so acted.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account, or to deposit into, or remit to the Paying
Agent for deposit into the Additional Interest Distribution Account
or the Distribution Account, any amount (other than a P&I Advance)
required to be so deposited or distributed by it under this
Agreement; or
(ii) any failure by the Special Servicer to deposit into the
REO Account or to deposit into, or to remit to the Master Servicer
for deposit into, the Certificate Account any amount required to be
so deposited or remitted under this Agreement; provided; however,
that if such failure to deposit or remit occurs only once in any
consecutive twelve-month period, which failure is corrected by 10:00
a.m., New York City time on the related Distribution Date, then with
respect to such one failure only, a default shall be deemed not to
have occurred; or
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(iii) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, as the case may be, contained in
this Agreement which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master
Servicer and the Special Servicer by any other party hereto or to
the Master Servicer or the Special Servicer, as the case may be
(with a copy to each other party hereto), by the Holders of
Certificates entitled to at least 25% of the Voting Rights;
provided, however, with respect to any failure which is not
reasonably curable within such 30-day period, the Master Servicer
and the Special Servicer, as applicable, shall have an additional
30-day period to effect a cure, so long as it has provided the
Trustee with an Officer's Certificate certifying that it has
diligently pursued and is continuing to diligently pursue a cure; or
(iv) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special
Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of
the Voting Rights; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of
or relating to it or of or relating to all or substantially all of
its property; or
(vii) the Master Servicer or the Special Servicer shall admit
in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
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(viii) if the Master Servicer or the Special Servicer, as
applicable, is not considered an "approved servicer" by Standard &
Poor's, or the Trustee shall have received a written notice from DCR
or from Moody's (which the Trustee shall promptly forward to the
Master Servicer or the Special Servicer as the case may be) to the
effect that if the Master Servicer or Special Servicer continues to
act in such capacity, the rating or ratings on one or more Classes
of Certificates will be downgraded or withdrawn (or, in the case of
Moody's, qualified) and the Trustee shall not have received a
subsequent notice from Moody's (within 90 days of receipt of the
first notice) indicating anything to the contrary (and upon the 91st
day the provisions of Section 7.01(b) shall apply); or
(ix) the Master Servicer shall fail to remit to the Paying
Agent for deposit into the Distribution Account by 4:00 p.m. on any
P&I Advance Date, the full amount of P&I Advances required to be
made on such date; provided, however, that if such failure to remit
by 4:00 p.m. on any P&I Advance Date occurs only once in any
consecutive twelve month period, which failure is corrected by 10:00
a.m., New York City time on the related Distribution Date, then with
respect to such one failure only, a default shall be deemed not to
have occurred; or
(x) the Master Servicer or the Special Servicer shall breach
the representation set forth in Section 3.23(a)(ix) or 3.24(a)(ix),
respectively.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) through (x) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall be continuing, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights
as a Certificateholder hereunder; provided that, if ORIX Real Estate Capital
Markets, LLC is terminated as initial Master Servicer hereunder, such
termination shall not preclude ORIX Real Estate Capital Markets, LLC from
servicing, subject to Section 3.22, as a Sub-Servicer in respect of the Mortgage
Loans. From and after the receipt by the Defaulting Party of such written notice
of termination, all authority and power of the Defaulting Party under this
Agreement, whether with respect to the Certificates (other than as a holder of
any Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested
in the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or
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appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise.
(c) The Master Servicer and the Special Servicer each agree that, if
it is terminated pursuant to Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, (i) in the case of the Master
Servicer, the immediate transfer to the Trustee or a successor Master Servicer
for administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, the Additional Interest Distribution Account or a
Servicing Account (if the Master Servicer is the Defaulting Party) or that are
thereafter received by or on behalf of the terminated Master Servicer with
respect to any Mortgage Loan or (ii) in the case of the Special Servicer, the
transfer within two Business Days to the Trustee or a successor Special Servicer
for administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the REO Account, the Certificate
Account or a Servicing Account or delivered to the Master Servicer (if the
Special Servicer is the Defaulting Party) or that are thereafter received by or
on behalf of the terminated Special Servicer with respect to any Mortgage Loan
or REO Property (provided, however, that the Master Servicer and the Special
Servicer each shall, if terminated pursuant to Section 7.01(b), continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, whether in respect of Advances or
otherwise, and it shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
(d) Any cost or expenses in connection with any actions to be taken
by the Master Servicer or Special Servicer or the Trustee pursuant to Section
7.01(c) shall be borne by the Defaulting Party and if not paid by the Defaulting
Party within 90 days after the presentation of reasonable documentation of such
costs and expenses, such expense shall be reimbursed by the Trust Fund;
provided, however, that the Defaulting Party shall not thereby be relieved of
its liability for such expenses. If and to the extent that the Defaulting Party
has not reimbursed such costs and expenses, the Trustee shall have an
affirmative obligation to take all reasonable actions to collect such expenses
on behalf of and at the expense of the Trust Fund. For purposes of this Section
7.01 and of Section 7.03(b), the Trustee shall not be deemed to have knowledge
of an event which constitutes, or which with the passage of time or notice, or
both, would constitute an Event of Default described in clauses (i)-(x) of
subsection (a) above unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by a Responsible Officer of the Trustee and such notice
references the Certificates, the Trust Fund or this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall be
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the successor in all respects to the Master Servicer or the Special Servicer, as
the case may be, in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all (and the former
Master Servicer or the Special Servicer, as the case may be, shall cease to have
any) of the responsibilities, duties and liabilities (except as provided in the
next sentence) of the Master Servicer or the Special Servicer, as the case may
be, arising thereafter, including, without limitation, if the Master Servicer is
the resigning or terminated party, the Master Servicer's obligation to make P&I
Advances, including, without limitation, in connection with any termination of
the Master Servicer for an Event of Default described in clause 7.01(a)(x), the
unmade P&I Advances that gave rise to such Event of Default; provided, that any
failure to perform such duties or responsibilities, other than making P&I
Advances when required, caused by the Master Servicer's or the Special
Servicer's, as the case may be, failure to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Notwithstanding anything contrary in this Agreement, the Trustee
shall in no event be held responsible or liable with respect to any of the
representations and warranties of the resigning or terminated party (other than
the Trustee) or for any losses incurred by such resigning or terminated party
pursuant to Section 3.06 hereunder nor shall the Trustee be required to purchase
any Mortgage Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation which the resigning or terminated
party would have been entitled to if the resigning or terminated party had
continued to act hereunder (except for the Retained Fee). Notwithstanding the
above, the Trustee may, if it shall be unwilling in its sole discretion to so
act as either Master Servicer or Special Servicer, as the case may be, or shall,
if it is unable to so act as either Master Servicer or Special Servicer, as the
case may be, if the Trustee is not approved as a Master Servicer or a Special
Servicer, as the case may be, by any of the Rating Agencies or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in writing
to the Trustee, promptly appoint, subject to the approval of each of the Rating
Agencies (as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause the downgrading or withdrawal
or, in the case of Standard & Poor's, qualification of the then current rating
on any Class of Certificates) or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution that meets the
requirements of Section 6.02; provided, however, that in the case of a resigning
or terminated Special Servicer, such appointment shall be subject to the rights
of the Holders of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class to designate a successor pursuant to Section
6.09. Except with respect to an appointment provided below, no appointment of a
successor to the Master Servicer or the Special Servicer hereunder shall be
effective until the assumption of the successor to such party of all its
responsibilities, duties and liabilities under this Agreement. Pending
appointment of a successor to the Master Servicer or the Special Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided.
Notwithstanding the above, the Trustee shall, if the Master Servicer is the
resigning or terminated party, and the Trustee is prohibited by law or
regulation from making P&I Advances, appoint, no later than the Distribution
Date following the resignation or termination of the Master Servicer, any
established mortgage loan servicing institution that has a net worth of not less
than $15,000,000 and is otherwise acceptable to each Rating Agency (as evidenced
by written confirmation therefrom to the effect that the appointment of such
institution would not cause the downgrading or withdrawal or, in the case of
Standard & Poor's, qualification of the then current rating on any Class of
Certificates), as the successor to the Master Servicer hereunder in the
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assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder (including, without limitation, the obligation to
make P&I Advances), which appointment will become effective immediately. In
connection with any such appointment and assumption by a successor Master
Servicer described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it and
such successor shall agree, provided that the Trustee shall use its best efforts
to ensure that such compensation is not in excess of that permitted the
resigning or terminated Master Servicer hereunder (exclusive of any Retained
Fees paid to such resigning or terminated Master Servicer). If the Trustee,
using its best efforts, is unable to appoint a successor Master Servicer as
required by this Section, then the Trustee is authorized to make such
arrangements for the compensation of the successor as it deems appropriate and
shall notify the Ratings Agencies in writing. Any additional compensation paid
to the successor Master Servicer shall an Additional Trust Fund Expense. Such
successor and the other parties hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to the
Rating Agencies.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has written notice of the occurrence of such an event, the Trustee
shall deliver notice to the Depositor and all Certificateholders and the Rating
Agencies of such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) or (x) of Section 7.01(a) may be waived only by
all of the Certificateholders of the affected Classes. Upon any such waiver of
an Event of Default, such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to Voting Rights
with respect to the matters described above.
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SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default. Except as expressly provided in Article VIII, under no circumstances
shall the rights provided to the Trustee under this Section 7.05 be construed as
a duty or obligation of the Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II) to the extent specifically
set forth herein, shall examine them to determine whether they conform to the
requirements of this Agreement to the extent specifically set forth herein. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor or the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred,
the duties and obligations
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of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and, in the absence
of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts if it
was required to do so;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to
the Trustee hereunder shall also be available to it in its capacity
as Paying Agent, Authenticating Agent, Certificate Registrar, REMIC
Administrator and Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any investigation
of matters arising hereunder or, except as provided in Section 10.01, to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the Trustee
shall not be required to expend or risk its own funds or otherwise
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incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; provided, however, that
nothing contained herein shall, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default which has not been cured, to exercise such of
the rights and powers vested in it by this Agreement, and to use the same degree
of care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible for all
acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder;
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is acting as
Master Servicer or the Special Servicer) or the Depositor; and
(viii) Neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s) and/or
Opinions of Counsel described in said Article applicable with respect to changes
in registration of record ownership of Certificates in the Certificate Register
and to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
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SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and the signature of the
Certificate Registrar and the Authenticating Agent set forth on each outstanding
Certificate, shall be taken as the statements of the Depositor or the Master
Servicer or the Special Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
it would have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself unreimbursed Additional
Trust Fund Expenses to the extent advanced by the Trustee and all earned but
unpaid Trustee Fees, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. The Trustee Fee (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the Trustee's sole compensation
for such services to be rendered by it.
(b) The Trustee and any director, officer, employee, affiliate,
agent or Control Person of the Trustee shall be entitled to be indemnified for
and held harmless by the Trust Fund against any loss, liability or reasonable
"out-of-pocket" expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with this
Agreement, the Mortgage Loans or the Certificates ("Trustee Liability");
provided, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms
hereof, or (2) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or
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negligence in the performance of the Trustee's obligations and duties hereunder,
or as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any other parties on the one
hand and the Trustee on the other in connection with the actions or omissions
which resulted in such Trustee Liability, as well as any other relevant
equitable considerations.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
banking authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall also be an entity
with a credit rating of at least "AA" by each Rating Agency and "Aa3" by Moody's
or such other rating that shall not result in the qualification, downgrading or
withdrawal of the rating or ratings assigned to one or more Classes of the
Certificates by any Rating Agency. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07; provided, that if the Trustee shall cease to be so eligible because its
combined capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) cause any Rating
Agency to qualify, downgrade or withdraw any rating assigned thereby to any
Class of Certificates, then upon the execution and delivery of such agreement
the Trustee shall not be required to resign, and may continue in such capacity,
for so long as none of the ratings assigned by the Rating Agencies to the
Certificates is adversely affected thereby. The corporation or association
serving as Trustee may have normal banking and trust relationships with the
Depositor, the Master Servicer, the Special Servicer and their respective
Affiliates but, except to the extent permitted or required by Section 7.02,
shall not be an Affiliate of the Master Servicer or the Special Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special
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Servicer and to all Certificateholders at their respective addresses set forth
in the Certificate Register. Upon receiving such notice of resignation, the
Master Servicer shall promptly appoint a successor trustee acceptable to the
Depositor and the Rating Agencies by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the Certificateholders by the Master Servicer. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail, if the Trustee is the Paying Agent
(other than by reason of the failure of either the Master Servicer or the
Special Servicer to timely perform its obligations hereunder or as a result of
other circumstances beyond the Trustee's reasonable control), to timely deliver
any report to be delivered by the Trustee pursuant to Section 4.02 and such
failure shall continue unremedied for a period of five days, or if the Paying
Agent (if different from the Trustee) fails to make distributions required
pursuant to Sections 3.05(b) or 4.01, then the Depositor may remove the Trustee
and appoint a successor trustee, if necessary, acceptable to the Master Servicer
by written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor so
appointed. In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including,
without limitation, P&I Advances and accrued interest thereon) accrued or owing
to it under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
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SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do
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so, or in case an Event of Default in respect of the Master Servicer shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Neither the Master Servicer nor the Special
Servicer shall have any duty to verify
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that any such Custodian is qualified to act as such in accordance with the
preceding sentence. The Trustee may enter into agreements to appoint a Custodian
which is not the Trustee, provided that, such agreement: (i) is consistent with
this Agreement in all material respects and requires the Custodian to comply
with this Agreement in all material respects and requires the Custodian to
comply with all of the applicable conditions of this Agreement; (ii) provides
that if the Trustee shall for any reason no longer act in the capacity of
Trustee hereunder, the successor trustee or its designee may thereupon assume
all of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Custodian under such agreement or alternatively,
may terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) does not permit the Custodian any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. The initial Custodian shall be the Trustee.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Custodian, any provision or requirement herein requiring notice or any
information or documentation to be provided to the Custodian shall be construed
to require that such notice, information or documents also be provided to the
Trustee. Any Custodian hereunder (other than the Trustee) shall at all times
maintain a fidelity bond and errors and omissions policy in amounts customary
for custodians performing duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents, which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. Each Authenticating Agent must be organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to do a trust business, have a combined capital and surplus of at
least $15,000,000, and be subject to supervision or examination by federal or
state authorities. Each Authenticating Agent shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder. The initial Authenticating Agent
shall be the Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Authenticating Agent, any provision or requirement
herein requiring notice or any information or documentation to be provided to
the Authenticating Agent shall be construed to require that such notice,
information or documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
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Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.12, the Trustee may appoint a
successor Authenticating Agent, in which case the Trustee shall given written
notice of such appointment to the Master Servicer, the Certificate Registrar and
the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. If the Paying Agent is not the
Trustee, the Trustee shall remit to the Paying Agent on the Business Day prior
to each Distribution Date, by wire transfer in immediately available funds, the
funds to be distributed on such Distribution Date. Any Paying Agent shall be
either a bank or trust company or otherwise authorized under law to exercise
corporate trust powers and shall have a rating of at least "A" (or its
equivalent) by each of Standard & Poor's and DCR, or such lower rating as will
not result in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating Agencies.
The Trustee may enter into agreements to appoint a Paying Agent which is not the
Trustee, provided that, such agreement: (i) is consistent with this Agreement in
all material respects and requires the Paying Agent to comply with this
Agreement in all material respects and requires the Paying Agent to comply with
all of the applicable conditions of this Agreement; (ii) provides that if the
Trustee shall for any reason no longer act in the capacity of Trustee hereunder
(including, without limitation, by reason of an Event of Default), the successor
trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the Paying
Agent under such agreement or alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Paying Agent any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of any Paying Agent
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any Paying Agent
to the extent such Paying Agent would have been responsible pursuant to the
terms hereof. The initial Paying Agent shall be the Trustee. Notwithstanding
anything herein to the contrary, if the Trustee is no longer the Paying Agent,
any provision or requirement herein requiring notice or any information to be
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provided to the Paying Agent shall be construed to require that such notice,
information or documentation also be provided to the Trustee.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint one or more REMIC Administrators, which
shall be authorized to act on behalf of the Trustee in performing the functions
set forth in Sections 3.17 and 10.01 herein. Each REMIC Administrator must be
acceptable to the Trustee and must be organized and doing business under the
laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Trustee may at any time terminate the agency of
any REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
SECTION 8.15. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, any Certificateholder and to the OTS, the FDIC and
any other banking or insurance regulatory authority that may exercise authority
over any Certificateholder, access to any documentation regarding the Mortgage
Loans within its control that may be required to be provided by this Agreement
or by applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
In connection with providing access to or copies of the
documentation described in the preceding paragraph, the Trustee shall require:
(a) in the case of Certificate Owners, a
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confirmation executed by the requesting Person (in the form of Exhibit V)
generally to the effect that such Person is a beneficial holder of Book Entry
Certificates and will keep such information confidential (except that such
Certificate Owner may provide such information to any other Person that holds or
is contemplating the purchase of any Certificate or interest therein, provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential); and (b) in the case of a prospective purchaser of a Certificate
or an interest therein, confirmation executed by the requesting Person (in the
form of Exhibit V) generally to the effect that such Person is a prospective
purchaser of a Certificate or an interest therein, is requesting the information
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Holders of the Certificates, by their
acceptance thereof, will be deemed to have agreed to keep such information
confidential (except that any Holder may provide any such information obtained
by it to any other Person that holds or is contemplating the purchase of any
Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
SECTION 8.16. Representations, Warranties and Covenants of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in a breach of, any material agreement or
other material instrument to which it is a party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee or
separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority to
carry on its business as now being conducted and to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding obligation
of the Trustee, enforceable against the Trustee in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
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(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to the
Trustee, would prohibit the Trustee from entering into this Agreement or, in the
Trustee's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Trustee to perform its obligations under
this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and performance
by the Trustee of or compliance by the Trustee with this Agreement or the
consummation of the transactions contemplated by this Agreement has been
obtained and is effective.
(b) The Trustee represents that any custom-made software or hardware
designed or purchased or licensed by the Trustee and used by the Trustee in the
course of the operation or management of, or the compiling, reporting or
generation of data required by this Agreement will be capable of identifying
correctly or performing calculations or other processing accurately with respect
to dates after December 31, 1999.
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information.
Within 15 days after each Distribution Date, the Trustee shall file
with the Commission via the Electronic Data Gathering and Retrieval System
(EDGAR), a Form 8-K with a copy of the statement to the Certificateholders for
such Distribution Date as an exhibit thereto. Prior to January 30, 2000, the
Trustee shall file a Form 15 Suspension Notification with respect to the Trust
Fund, if applicable. Prior to March 30, 2000, the Trustee shall file a Form
10-K, in substance conforming to industry standards, with respect to the Trust
Fund. The Depositor hereby grants to the Trustee a limited power of attorney to
execute and file each such document on behalf of the Depositor. Such power of
attorney shall continue until either the earlier of (i) receipt by the Trustee
from the Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. The Depositor agrees to promptly furnish to the
Trustee, from time to time upon request, such further information, reports, and
financial statements within its control related to this Agreement and the
Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Depositor shall promptly file, in
a manner that is reasonably acceptable to the Trustee, and exercise its
reasonable best efforts to obtain a favorable response to, no-action requests
with, or other appropriate exemptive relief from, the Commission seeking usual
and customary exemption from such reporting requirements granted to issuers of
securities similar to the Certificates. The Depositor shall promptly forward to
the Trustee a copy of such no-action letter once received from the Commission.
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The Depositor agrees to indemnify and hold harmless the Trustee with
respect to any liability, cost or expenses, including reasonable attorneys'
fees, arising from the Trustee's execution of such reports, statements and
information that contain errors or omissions or is otherwise misleading,
provided, however, that if the indemnification provided for herein is invalid or
unenforceable, then the Depositor shall contribute to the amount paid by the
Trustee as a result of such liability in such amount as is necessary to limit
the Trustee's responsibility for any such payment to any amount resulting from
its own negligence or willful misconduct. The Trustee shall have no
responsibility to determine whether or not any filing may be required and shall
not have any responsibility to review or confirm in any way the accuracy or the
sufficiency of the contents of any such filing.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent on behalf of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) (i) to the Certificateholders of all amounts
held by or on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Majority Subordinate Certificateholder, or if not purchased by such Person, the
Depositor, the Master Servicer or the Special Servicer of all Mortgage Loans and
each REO Property remaining in REMIC I at a price equal to (1) the aggregate
Purchase Price of all the Mortgage Loans included in REMIC I, plus (2) the
appraised value of each REO Property, if any, included in REMIC I, such
appraisal to be conducted by an Independent Appraiser selected by the Master
Servicer and approved by the Trustee, minus (3) if the purchaser is the Master
Servicer or the Special Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer or the Special Servicer, as the case may be,
together with any interest accrued and payable to the Master Servicer or the
Special Servicer in respect of unreimbursed Advances in accordance with Sections
3.03(d) and 4.03(d) and any unpaid Master Servicing Fees and, if ORIX is the
Master Servicer, unpaid Retained Fees remaining outstanding (which items shall
be deemed to have been paid or reimbursed to the Master Servicer or the Special
Servicer, as the case may be, in connection with such purchase), and (B) the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or REO Property remaining in REMIC I, and (ii) to the
Trustee, the Master Servicer, the Special Servicer and the officers, directors,
employees and agents of each of them of all amounts which may have become due
and owing to any of them hereunder; provided, however, that in no event shall
the trust created hereby continue beyond the earlier of (i) the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date hereof, or (ii) the Rated Final Distribution Date specified
in Section 10.01(e).
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The Majority Subordinate Certificateholder, or if not purchased by
such Person, the Depositor, the Master Servicer or the Special Servicer may at
its option elect to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I as contemplated by clause (i) of the preceding paragraph by
giving written notice to the other parties hereto no later than 60 days prior to
the anticipated date of purchase; provided, however, that (i) the aggregate
Stated Principal Balance of the Mortgage Pool at the time of such election is
less than 1% of the aggregate Cut-Off Date Balance of the Mortgage Pool set
forth in the Preliminary Statement, and (ii) the Master Servicer shall not have
the right to effect such a purchase if, within 30 days following the Master
Servicer's delivery of a notice of election pursuant to this paragraph, the
Depositor shall give notice of its election to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I and shall thereafter effect
such purchase in accordance with the terms hereof. If the Trust Fund is to be
terminated in connection with the Majority Subordinate Certificateholder's, the
Master Servicer's, the Special Servicer's or the Depositor's purchase of all of
the Mortgage Loans and each REO Property remaining in REMIC I, Majority
Subordinate Certificateholder, the Master Servicer, the Special Servicer or the
Depositor, as applicable, shall deliver to the Paying Agent for deposit in the
Distribution Account not later than the P&I Advance Date relating to the
Distribution Date on which the final distribution on the Certificates is to
occur an amount in immediately available funds equal to the above-described
purchase price. In addition, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Certificate Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution. Upon written
confirmation that such final deposit has been made, the Trustee shall release or
cause to be released to the Majority Subordinate Certificateholder, the Master
Servicer, the Special Servicer or the Depositor, as applicable, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Majority Subordinate
Certificateholder, the Master Servicer, the Special Servicer or the Depositor,
as applicable, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the Majority Subordinate Certificateholder, the
Master Servicer (or its designee), the Special Servicer or the Depositor (or its
designees), as applicable. Any transfer of Mortgage Loans to the Depositor
pursuant to this paragraph shall be on a servicing-released basis. The
out-of-pocket expenses incurred by the Master Servicer in connection with a
termination pursuant to this Section shall constitute a Servicing Advance;
provided, that if the Master Servicer elects to purchase the Mortgage Loans and
REO Properties, such out-of-pocket expenses shall be borne by the Master
Servicer.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Majority Subordinate Certificateholder's, the Master Servicer's, the
Special Servicer's or Depositor's purchase of the Mortgage Loans and each REO
Property remaining in REMIC I, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates or (b) otherwise during the month of such final distribution on
or before the Determination Date in such month to the extent a Responsible
Officer of the Trustee has knowledge of such termination, but in any event not
less than five days prior to such final Distribution Date, in each case
specifying (i) the Distribution Date upon which the Trust Fund will
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terminate and final payment of the Certificates will be made, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the offices of the Certificate
Registrar or such other location therein designated. The Trustee shall give such
notice to the Majority Subordinate Certificateholder, the Master Servicer, the
Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (viii) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums, shall be allocated in the
same order of priority set forth in Section 4.01(a), in each case to the extent
of remaining available funds.
Any Prepayment Premiums on deposit in the Certificate Account as of
the final Distribution Date shall be distributed among the Holders of the
Regular Certificates, and any Additional Interest on deposit in the Additional
Interest Distribution Account as of the final Distribution Date shall be
distributed to the Holders of the Class R-III Certificates, in accordance with
Sections 4.01(b) and 4.01(c), respectively. Any funds not distributed to any
Holder or Holders of Certificates of such Class on such Distribution Date
because of the failure of such Holder or Holders to tender their Certificates
shall, on such date, be set aside and held uninvested in trust and credited to
the account or accounts of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section 9.01
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Paying Agent shall mail a second notice to
the remaining non-tendering Certificateholders to surrender their Certificates
for cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such Certificates shall
not have been surrendered for cancellation, the Paying Agent, directly or
through an agent, shall take such reasonable steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If, within one year after
the second notice, all of the Certificates shall not have been surrendered for
cancellation, the Holders of the Class R-III Certificates shall be entitled to
all unclaimed funds and other assets which remain subject thereto (to the extent
it is not required to dispose of such unclaimed funds and assets otherwise in
accordance with applicable state escheatment law.)
All actual distributions on the respective Classes of REMIC III
Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be
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deemed to have first been distributed from REMIC I to REMIC II on the various
REMIC I Regular Interests in accordance with Section 4.01(i).
SECTION 9.02. Additional Termination Requirements.
(a) If the Majority Subordinate Certificateholder the Depositor, the
Master Servicer or the Special Servicer purchases all of the Mortgage Loans and
each REO Property remaining in REMIC I as provided in Section 9.01, the Trust
Fund (and, accordingly, REMIC I, REMIC II and REMIC III) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer, the Special Servicer or the Depositor, as applicable, obtains at its
own expense and delivers to the Trustee and the REMIC Administrator and, in the
case of Majority Subordinate Certificateholder or the Depositor, to the Trustee
and the Master Servicer, an Opinion of Counsel, addressed to the Trustee, the
REMIC Administrator and the Master Servicer, to the effect that the failure of
the Trust Fund to comply with the requirements of this Section 9.02 will not
result in the imposition of taxes on "prohibited transactions" of REMIC I, REMIC
II or REMIC III as defined in Section 860F of the Code or cause REMIC I, REMIC
II or REMIC III to fail to qualify as a REMIC at any time that any Certificates
are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I, REMIC II and REMIC III pursuant to
Treasury Regulations Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder as set forth in an Opinion of
Counsel obtained by the purchasing party at the expense of such
purchasing party;
(ii) during such 90-day liquidation period and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Majority
Subordinate Certificateholder, the Master Servicer or the Depositor,
as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause
to be distributed or credited, to the Certificateholders in
accordance with Section 9.01 all cash on hand (other than cash
retained to meet claims), and each of REMIC I, REMIC II and REMIC
III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the REMIC Administrator to specify the 90-day liquidation
period for each of REMIC I, REMIC II and REMIC III, which authorization shall be
binding upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and, if necessary, under
applicable state law. Such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending on the last
day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests
and the Regular Certificates (or in the case of the Class IO Certificates, each
of its Components) are hereby designated as "regular interests" (within the
meaning of Section 860G(a)(1) of the Code) in REMIC I, REMIC II and REMIC III,
respectively. The Class R-I Certificates, the Class R-II Certificates and the
Class R-III Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. None of the Master Servicer, the Special
Servicer or the Trustee shall (to the extent within its control) permit the
creation of any other "interests" in REMIC I, REMIC II or REMIC III (within the
meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(d) Each Plurality Residual Certificateholder as to the applicable
taxable year is hereby designated as the Tax Matters Person of each of REMIC I,
REMIC II and REMIC III, and shall act on behalf of the related REMIC in relation
to any tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided, that the REMIC Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each of REMIC I, REMIC II and REMIC III) as agent and
attorney-in-fact for the Tax Matters Person for each of REMIC I, REMIC II and
REMIC III in the performance of its duties as such.
(e) Solely for purposes of Treasury Regulations Sections
1.860G-1(a)(4)(iii), November 15, 2029, has been designated the "latest possible
maturity date" of each REMIC I Regular Interest, each REMIC II Regular Interest
and each Class of Regular Certificates (or in the case of the Class IO
Certificates, each of its Components).
(f) Any and all ordinary tax-related expenses of any of REMIC I,
REMIC II or REMIC III shall be paid by the REMIC Administrator and shall not be
an expense of the Trust Fund. Any fees of the REMIC Administrator shall be paid
by the Trustee and shall not be an expense of the Trust Fund. Any taxes,
penalties, interest or extraordinary expenses including, but not limited to, any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to any of REMIC I, REMIC II or REMIC III that
involve the Internal Revenue Service or state or local taxing authorities will
(to the extent not payable by a specified Person pursuant to Section 10.01(j))
be expenses of the Trust Fund.
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(g) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I, REMIC II and REMIC III. The ordinary expenses of preparing
and filing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The other parties hereto shall provide on a
timely basis to the REMIC Administrator or its designee such information with
respect to each of REMIC I, REMIC II and REMIC III as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Article. Without limiting the generality of the
foregoing, the Depositor, within ten days following the REMIC Administrator's
request therefor, shall provide in writing to the REMIC Administrator such
information as is reasonably requested by the REMIC Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the
REMIC Administrator's duty to perform its reporting and other tax compliance
obligations under this Article X shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Trustee to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC
I, REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or, with
respect to State and Local Taxes, any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide to: (i) any Transferor
of a Residual Certificate, for a reasonable fee, such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I, REMIC II and REMIC III.
(i) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I, REMIC II and REMIC III as a REMIC
under the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special
Servicer, the REMIC Administrator or the Trustee shall knowingly take (or cause
any of REMIC I, REMIC II or REMIC III to take) any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if taken
or not taken, as the case may be, could (i) endanger the status of any of REMIC
I, REMIC II or REMIC III as a REMIC, or (ii) except as provided in Section
3.17(a), result in the imposition of a tax upon any of REMIC I, REMIC II or
REMIC III (including, but not limited to, the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code, the tax on contributions to a REMIC
set forth in Section 860G(d) of the Code or the result in the imposition of a
tax on "net income from foreclosure property" as defined
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in Section 860G(c) of the Code) (any such endangerment or imposition, except as
provided in Section 3.17(a)(iii), an "Adverse REMIC Event"), unless the REMIC
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the
REMIC Administrator seeks to take such action or to refrain from acting for the
benefit of the Certificateholders) to the effect that the contemplated action
will not result in an Adverse REMIC Event. The REMIC Administrator shall not
take any action or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the Special Servicer has advised it in
writing that either the Master Servicer or the Special Servicer has received or
obtained an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action with
respect to REMIC I, REMIC II or REMIC III, or causing any of REMIC I, REMIC II
or REMIC III to take any action, that is not expressly permitted under the terms
of this Agreement, the Master Servicer and the Special Servicer shall consult
with the REMIC Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur. Neither the
Master Servicer nor the Special Servicer shall take any such action or cause any
of REMIC I, REMIC II or REMIC III to take any such action as to which the REMIC
Administrator has advised it in writing that an Adverse REMIC Event could occur,
and neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instruments of the REMIC Administrator. The REMIC Administrator may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not expressly permitted by this Agreement, but
in no event at the cost or expense of the Trust Fund, the REMIC Administrator or
the Trustee. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of REMIC I, REMIC II and REMIC III will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of State or Local Tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Article X provided
that no liability shall be imposed upon the REMIC Administrator under this
clause if another party has responsibility for payment of such tax under clauses
(ii) - (vi) of this Section; (ii) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; (iii) the Master Servicer, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under Article III or this Article X; (iv) the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X; (v) the Depositor, if such tax was imposed due to the fact
that any of the Mortgage Loans did not, at the time of their transfer to the
REMIC I, constitute a
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"qualified mortgage" as defined in Section 860G(a)(3) of the Code; or (vi) the
Trust Fund in all other instances. Any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a)(iii) shall be charged to and paid
by the Trust Fund. Any such amounts payable by the Trust Fund shall be paid by
the Paying Agent upon the written direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account in reduction of the Available
Distribution Amount pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II and REMIC
III on a calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I, REMIC II or REMIC III unless it shall have received an Opinion of
Counsel (at the expense of the party seeking to cause such contribution and in
no event at the expense of the Trust Fund or the Trustee) to the effect that the
inclusion of such assets in such REMIC will not cause: (i) such REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the foreclosure of a Mortgage Loan, including, but not
limited to, the sale or other disposition of a Mortgaged Property acquired by
deed in lieu of foreclosure, (B) the bankruptcy of REMIC I, REMIC II or REMIC
III, (C) the termination of REMIC I, REMIC II and REMIC III pursuant to Article
IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or as
contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Certificate Account, the Distribution
Account, the Additional Interest Distribution Account, the Interest Reserve
Account or the REO Account for gain; or (iii) the acquisition of any assets for
REMIC I, REMIC II or REMIC III (other than (1) a Mortgaged Property acquired
through foreclosure, deed in lieu of foreclosure or otherwise in respect of a
defaulted Mortgage Loan, (2) a Qualified Substitute Mortgage Loan pursuant to
Article II hereof and (3) Permitted Investments acquired in connection with the
investment of funds in the Certificate Account, the Distribution Account or the
REO Account); in any event unless it has received an Opinion of Counsel (at the
expense of the party seeking to cause such sale, disposition, or acquisition but
in no event at the expense of the Trust Fund or the Trustee) to the effect that
such sale, disposition, or acquisition will not cause: (x) REMIC I, REMIC II or
REMIC III to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on REMIC I, REMIC II or REMIC III
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(n) Except in connection with Section 3.17(a)(iii), none of the
Trustee, the Master Servicer and the Special Servicer shall enter into any
arrangement by which REMIC I, REMIC II or REMIC III will receive a fee or other
compensation for services nor, to the extent it is within its control, permit
REMIC I, REMIC II or REMIC III to receive any income from assets
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other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder which shall
not be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, or (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Master Servicer, the Special Servicer and the Trustee, is
reasonably necessary to comply with any requirements imposed by the Code or any
successor or amendatory statute or any temporary or final regulation, revenue
ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any such proposed action
which, if made effective, would apply retroactively to any of the REMICs created
hereunder at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of any such REMIC; provided, that such action (except any amendment
described in clause (v) above) shall not, as evidenced by an Opinion of Counsel
obtained by or delivered to the Master Servicer, the Special Servicer and the
Trustee adversely affect in any material respect the interests of any
Certificateholder with respect to the Trust Fund; and provided further that the
Master Servicer, the Special Servicer and the Trustee shall have first obtained
from each Rating Agency written assurance that such amendment will not cause the
qualification, downgrading or withdrawal of the then current rating on any Class
of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) as evidenced by an Opinion
of Counsel obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee (provided that no such Opinion of Counsel shall be required if
the Trustee receives the assurance of the Rating Agencies described above),
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i) without the
consent of the Holders of all Certificates of such Class, (iii) modify the
provisions of this Section 11.01 without the consent of the Holders of all
Certificates
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then outstanding, (iv) modify the provisions of Section 3.20 without the consent
of the Holders of Certificates entitled to all of the Voting Rights, (v) change
the definition of "Servicing Standard" without the consent of the Holders of all
Certificates then outstanding or (vi) modify the specified percentage of Voting
Rights which are required to be held by Certificateholders to consent or not to
object to any action pursuant to any provision of this Agreement without the
consent of the Holders of all Certificates then outstanding. Notwithstanding any
other provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) to the effect that (i) such amendment or
the exercise of any power granted to the Trustee, the Master Servicer or the
Special Servicer in accordance with such amendment will not result in the
imposition of a tax on any of REMIC I, REMIC II or REMIC III pursuant to the
REMIC Provisions or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding and (ii)
such amendment complies with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall make a copy thereof available to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Certificate Account or the Distribution
Account pursuant to Section 3.05.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other
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comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at the expense
of the Trust Fund, but only upon direction accompanied by an Opinion of Counsel
(the cost of which may be paid out of the Certificate Account pursuant to
Section 3.05(a)) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders; provided, however, that the
Trustee shall have no obligation or responsibility to determine whether any such
recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of Certificates entitled
to at least 25% of the Voting Rights shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, and without receiving notice to the contrary
from Holders of Certificates entitled to at least 25% of the Voting Rights,
shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain
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or seek to obtain priority over or preference to any other such Holder, which
priority or preference is not otherwise provided for herein, or to enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws without
regard to conflicts of law principles.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, Merrill
Lynch Mortgage Investors, Inc., World Financial Center, North Tower, 250 Vesey
Street, New York, New York 10281, Attention: the Secretary, with a copy to the
treasurer, facsimile number: 212-449-0735; (ii) in the case of the Master
Servicer, ORIX Real Estate Capital Markets, LLC, 1717 Main Street, 14th Floor,
Dallas, Texas 75201, Attention: Edgar L. Smith, II, telecopy number: (214)
237-2041, with a copy to Paul Smyth; (iii) in the case of the Special Servicer,
ORIX Real Estate Capital Markets, LLC, 1717 Main Street, 14th Floor, Dallas,
Texas 75201, Attention: Edgar L. Smith, II, telecopy number: (214) 237-2041,
with a copy to Paul Smyth, (iv) in the case of the Trustee, Norwest Bank
Minnesota, National Association, 11000 Broken Land Parkway, Columbia, Maryland
21044-3562, Attention: Corporate Trust Services (CMBS) - MLMI Series 1999-C1,
telecopy number: (410) 884-2360, and (v) in the case of the Rating Agencies, (A)
Standard & Poor's, 55 Water Street, New York, New York 10041-0003, Attention:
Real Estate Ratings Group, Surveillance Manager, telecopy number: (212)
438-2662, and (B) Duff & Phelps Credit Rating Co., CMBS Monitoring Group, 55 E.
Monroe St., Chicago, Illinois 60603, Attention: CMBS Surveillance Croup,
telecopy number: (312) 263-2852 or as to each such Person such other address as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
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SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets constituting the Trust
Fund, and (ii) this Agreement shall constitute a security agreement under
applicable law. This Section 11.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the New York UCC.
SECTION 11.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other Person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.09. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10. Notices to and From Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Master Servicer or
the Special Servicer;
(iv) the repurchase or substitution of Mortgage Loans by the
Mortgage Loan Sellers pursuant to the Mortgage Loan Purchase
Agreements;
(v) any change in the location of the Distribution Account or
the Additional Interest Distribution Account; and
(vi) the final payment to any Class of Certificateholders.
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(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
and
(iii) any Officer's Certificate delivered by it to the
Trustee.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a non-performing or defaulted Mortgage Loan such information as the
Rating Agency shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law and without waiving any
attorney-client privilege attached to such information. The Special Servicer may
attach any reasonable disclaimer it deems appropriate to such information.
(d) To the extent applicable and not previously delivered, each of
the Master Servicer and the Special Servicer shall promptly furnish to each
Rating Agency copies of the following items:
(i) each of its annual statements as to compliance described
in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
(iii) any Officers' Certificate delivered by it to the Trustee
pursuant to Section 4.03(c) or 3.08; and
(iv) each of its inspection reports described in Section
3.12(a) and the statements and reports described in Section 3.12(b),
3.12(c) and 3.12(d).
(e) The Trustee shall (i) make available electronically to each
Rating Agency the items described in Section 3.15 and Section 4.02(a) and (ii)
promptly deliver to each Rating Agency a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) The Master Servicer, the Special Servicer and the Trustee shall
furnish each Rating Agency, at no charge, such other documents relating to the
Trust Fund as the Rating Agency shall reasonably request and which the Master
Servicer, the Special Servicer or the Trustee, as applicable, has in its
possession and can reasonably provide in accordance with applicable law and
without waiving any attorney-client privilege attached to such information. The
Master Servicer, the Special Servicer and the Trustee, as applicable, may attach
any reasonable disclaimer it deems appropriate to such information.
(g) Pursuant to Section 6.11, in the event the Special Servicer
determines that any direction or objection of the Controlling Class
Representative would cause the Special Servicer to violate this Agreement,
expose the Master Servicer, the Special Servicer, the Trust
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<PAGE>
Fund or Trustee to liability or materially expand the scope of the Special
Servicer's responsibilities, the Special Servicer shall notify the Controlling
Class Representative, the Rating Agencies and the Trustee.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
By: /s/ Michael M. McGovern
------------------------------------
Name: Michael M. McGovern
Title: Authorized Signatory
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Master Servicer
By: /s/ Edgar L. Smith II
------------------------------------
Name: Edgar L. Smith II
Title: Chief Operating Officer
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
By: /s/ Edgar L. Smith II
------------------------------------
Name: Edgar L. Smith II
Title: Chief Operating Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Trustee
By: /s/ Jack A. Aini
------------------------------------
Name: Jack A. Aini
Title: Vice President
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<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the Class
Rate: 7.37% per annum A-1 Certificates as of the Closing
Date: $97,600,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class A-1
Certificate as of the Closing Date:
$97,600,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1 CUSIP No. 589929 UC 0
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES and THE CLASS
A-2 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY
THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
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<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1 Certificate (obtained by
dividing the principal amount of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-1 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Merrill
Lynch Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-1
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register.
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<PAGE>
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1 Certificates are exchangeable for new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates in
authorized denominations evidencing
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<PAGE>
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class A-1 Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
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<PAGE>
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ________________________,
the Assignee named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the Class
Rate: 7.56% per annum A-2 Certificates as of the Closing
Date: $337,847,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class A-2
Certificate as of the Closing Date:
$200,000,000
Closing Date: November __, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1 CUSIP No. 589929 UD 8
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 AS AMENDED (THE "CODE").
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D,
CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF CLASS A-1
CERTIFICATES AND THE CLASS A-2 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal amount of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as
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<PAGE>
specified above (the "Agreement"), among Merrill Lynch Mortgage Investors, Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), ORIX Real Estate Capital Markets, LLC (hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (hereinafter called the
"Special Servicer", which term includes any successor entities under the
Agreement), and Norwest Bank Minnesota, National Association (hereinafter called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final
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<PAGE>
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
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<PAGE>
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class A-2 Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
-5-
<PAGE>
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-6-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-7-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-8-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to___________________________________
________________________________________________________________________________
for the account of______________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
-9-
<PAGE>
EXHIBIT A-3
FORM OF CLASS IO CERTIFICATE
CLASS IO MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through
Rate: Variable
Date of Pooling and Servicing Aggregate Certificate Notional
Agreement: November 1, 1999 Amount of the Class IO Certificates
as of the Closing Date:
$592,445,159
Closing Date: November 4, 1999 Certificate Notional Amount of this
Class IO Certificate as of the
Closing Date:
$200,000,000
First Distribution Date: Aggregate Stated Principal Balance
December 15, 1999 of the Mortgage loans as of the
Cut-Off Date $592,445,159
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1 CUSIP No. 589929 UK 2
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE CERTIFICATE NOTIONAL AMOUNT,
BUT IS ENTITLED TO RECEIVE INTEREST ON ITS COMPONENTS AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES A
BENEFICIAL OWNERSHIP INTEREST IN 11 "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE
PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID")
RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4,
1999. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT
USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL
TO A CPR (AS DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS
SUPPLEMENT DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT
THE ARD LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES
AS SET FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER
THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY
AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
-2-
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by all the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Merrill Lynch Mortgage Investors, Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), ORIX Real Estate Capital Markets, LLC (hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (hereinafter called the
"Special Servicer", which term includes any successor entities under the
Agreement), and Norwest Bank Minnesota, National Association (hereinafter called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class IO Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class IO
Certificates will be made by Norwest Bank Minnesota, National Association as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
-3-
<PAGE>
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class IO
Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate
-4-
<PAGE>
Registrar and any agent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class IO Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
-5-
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-6-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-7-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________
___________________________________________________________
___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-8-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ________________________, the
Assignee named above, or ______________, as its agent.
-9-
<PAGE>
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
CLASS B MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.71% per annum and B Certificates as of the Closing
the Weighted Average Net Morgage Rate Date: $32,584,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class B Certificate
as of the Closing Date: $32,584,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1 CUSIP No. 589929 UE 6
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES AND THE CLASS IO CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS B CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON
DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO
THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING
AGREEMENT REFEREED TO HEREIN.
-2-
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES AND
THE CLASS A-2 CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date) commencing on the first
Distribution Date specified above, to the Person in whose name
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<PAGE>
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class B
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
-4-
<PAGE>
The Class B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class B Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class B Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of the transfer
of a Class B Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit G to the
Agreement.
No service charge will be imposed for any registration of transfer
or exchange of Class B Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class B
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate
-5-
<PAGE>
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or Special Servicer at a price determined as
provided in the Agreement of all Mortgage Loans and each REO Property remaining
in the Trust Fund. The Agreement permits, but does not require, the Majority
Subordinate Certificateholder, the Depositor or the Master Servicer, in that
order, to elect to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class B Certificates; however, such right to elect to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of election being less than 1% of the aggregate Balance of the Mortgage
Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to
-6-
<PAGE>
agreements made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-8-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-9-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to___________________________________
________________________________________________________________________________
__________________________________________ for the account of___________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
_______________________________________________________________________________.
This information is provided by ____________________, the Assignee
named above, or _____________________, as its agent.
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<PAGE>
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
CLASS C MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.85% per annum and C Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $26,660,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class C Certificate
as of the Closing Date: $26,660,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1 CUSIP No. 589929 UF 3
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, AND THE CLASS B CERTIFICATES OF THE
SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS C CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON
DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO
THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
-2-
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS
H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date) commencing on the first
-3-
<PAGE>
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class C
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
-4-
<PAGE>
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class C Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class C Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of the transfer
of a Class C Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit G to the
Agreement.
No service charge will be imposed for any registration of transfer
or exchange of Class C Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class C
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer and the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer and the Trustee, the Paying
Agent, the Certificate
-5-
<PAGE>
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class C Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as a REMIC, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
-6-
<PAGE>
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-8-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-9-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
__________________________________________ for the account of __________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
_______________________________________________________________________________.
This information is provided by ____________________, the Assignee
named above, or _____________________, as its agent.
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<PAGE>
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
CLASS D MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.85% per annum and D Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $8,887,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class D
Certificate as of the Closing Date:
$8,887,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1 CUSIP No. 589929 UG 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B
AND CLASS C CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS D CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
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<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CLASS A-2, CLASS
B AND CLASS C CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special
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<PAGE>
Servicer", which term includes any successor entities under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the 15th
day of each month or, if such 15th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date") (provided, however, that the
Distribution Date will be no earlier than the fourth Business Day following the
related Determination Date), commencing on the first Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class D Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on this Class D Certificate will be made by Norwest Bank
Minnesota, National Association, as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions) or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holders hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class D Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class D
Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class D Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class D Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class D Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class D Certificate, the Certificate Registrar shall have the right to require
the prospective transferee of such Certificate to execute a certification
substantially in the form of Exhibit G to the Agreement.
No service charge will be imposed for any registration of transfer
or exchange of Class D Certificates, but the
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<PAGE>
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class D Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class D Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued
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<PAGE>
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the
Assignee named above, or ____________________________, as its agent.
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<PAGE>
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
CLASS E MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.85% per annum and E Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $20,735,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class E
Certificate as of the Closing
Date: $20,735,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 UH 9
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS E CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
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<PAGE>
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE. THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE
PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID")
RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4,
1999. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT
USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL
TO A CPR (AS DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS
SUPPLEMENT DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT
THE ARD LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES
AS SET FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class E Certificate (obtained by dividing
the principal amount of this Class E Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class E Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
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<PAGE>
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class E
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holders hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class E Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class E Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class E Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class E Certificate, the Certificate Registrar shall have the right to require
the prospective transferee of such Certificate to execute a certification
substantially in the form of Exhibit G to the Agreement.
No service charge will be imposed for any registration of transfer
or exchange of Class E Certificates, but the
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<PAGE>
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class E Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class E Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued
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<PAGE>
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________
___________________________________________________
___________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-9-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
CLASS F MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.85% per annum and F Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $7,406,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class F
Certificate as of the Closing
Date: $7,406,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 UJ 5
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C CLASS D AND CLASS E CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS F CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
-11-
<PAGE>
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE. THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE
PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID")
RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4,
1999. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT
USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL
TO A CPR (AS DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS
SUPPLEMENT DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT
THE ARD LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES
AS SET FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS B, CLASS C CLASS D AND CLASS E CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J AND CLASS K CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
-3-
<PAGE>
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class F
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holders hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
-4-
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class F Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class F Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class F Certificate, the Certificate Registrar shall have the right to require
the prospective transferee of such Certificate to execute a certification
substantially in the form of Exhibit G to the Agreement.
No service charge will be imposed for any registration of transfer
or exchange of Class F Certificates, but the
-5-
<PAGE>
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class F Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class F Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued
-6-
<PAGE>
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________
___________________________________________________________
___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-9-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
CLASS G MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 6.71% per annum and G Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $23,698,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class G
Certificate as of the Closing
Date: $23,698,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 UL 0
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO
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<PAGE>
SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE TRANSFEREE
PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND AN OPINION
OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT
SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975
OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS G
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4, 1999. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (AS
DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS SUPPLEMENT
DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT THE ARD
LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES AS SET
FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H, CLASS J AND CLASS K CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
-3-
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All Distributions made under the Agreement on this Class G
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future
-4-
<PAGE>
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class G
Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
-5-
<PAGE>
No transfer of any Class G Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and upon acquisition
of its Class G Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
-6-
<PAGE>
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class G Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment
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<PAGE>
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
____________________________________________________________
____________________________________________________________
____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-10-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to___________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable
to _______________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
-11-
<PAGE>
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
CLASS H MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 6.71% per annum and H Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $20,735,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class H
Certificate as of the Closing
Date: $20,735,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 UM 8
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES OF THE SAME SERIES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO
-2-
<PAGE>
SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE TRANSFEREE
PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND AN OPINION
OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT
SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975
OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS H
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4, 1999. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (AS
DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS SUPPLEMENT
DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT THE ARD
LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES AS SET
FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J AND CLASS K CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
-3-
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class H
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future
-4-
<PAGE>
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
-5-
<PAGE>
No transfer of any Class H Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class H Certificate without registration or qualification. Any Class H
Certificateholder desiring to effect such a transfer shall, and upon acquisition
of its Class H Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
-6-
<PAGE>
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class H Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment
-7-
<PAGE>
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-9-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-10-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________,
the Assignee named above, or ______________, as its agent.
-11-
<PAGE>
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
CLASS J MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.21% per annum and J Certificates as of the Closing
the Weighted Average Net Morgage Rate Date: $2,963,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class J
Certificate as of the Closing
Date: $2,963,000
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 UN 6
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF
-2-
<PAGE>
SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER
AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE
CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL
THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH
TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF
THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS J
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4, 1999. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (AS
DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS SUPPLEMENT
DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT THE ARD
LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES AS SET
FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
-3-
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class J
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future
-4-
<PAGE>
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to the Holder hereof of
such final distribution. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class J
Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
-5-
<PAGE>
No transfer of any Class J Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class J
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class J Certificate without registration or qualification. Any Class J
Certificateholder desiring to effect such a transfer shall, and upon acquisition
of its Class J Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
-6-
<PAGE>
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class J Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment
-7-
<PAGE>
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-9-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
____________________________________________________________
____________________________________________________________
____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
________________________________________________________________________________
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
CLASS K MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: the lesser of 7.21% per annum and K Certificates as of the Closing
the Weighted Average Net Mortgage Rate Date: $13,330,159
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1999 Balance of this Class K
Certificate as of the Closing
Date: $13,330,159
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 UP 1
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF
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<PAGE>
SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER
AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE
CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL
THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH
TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF
THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS K
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 4, 1999. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (AS
DEFINED IN THE PROSPECTUS DATED OCTOBER 15, 1999 AND THE PROSPECTUS SUPPLEMENT
DATED OCTOBER 29, 1999 RELATING TO THIS CERTIFICATE) OF 0% AND THAT THE ARD
LOANS ARE REPAID IN FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES AS SET
FORTH IN SUCH PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM,
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$____________ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED
BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
-3-
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class K Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class K
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this
-4-
<PAGE>
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class K
Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing
-5-
<PAGE>
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
No transfer of any Class K Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class K
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class K Certificate without registration or qualification. Any Class K
Certificateholder desiring to effect such a transfer shall, and upon acquisition
of its Class K Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class K Certificates, but the
-6-
<PAGE>
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class K Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class K Certificates; however, such
right to elect to purchase is subject to the aggregate Stated Principal Balance
of the Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued
-7-
<PAGE>
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
-9-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________
______________________________________________________________
______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-10-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
-11-
<PAGE>
EXHIBIT A-13
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1999 this Class R-I Certificate: 100%
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO ALL OF THE REMIC I REGULAR INTERESTS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS R-I
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX-RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
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<PAGE>
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Class R-I Certificate (as specified above)
in that certain beneficial ownership interest evidenced by all the Class R-I
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date") (provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount, if any, required to be distributed to the Holders of
the Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-I
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to,
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<PAGE>
distributions to Certificateholders, such purposes including the reimbursement
of advances made, or certain expenses incurred, with respect to the Mortgage
Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form
only without coupons, representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Class R-I Certificates are exchangeable for new Class R-I
Certificates as authorized in the Agreement evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated Transferee or Transferees.
No Transfer of any Class R-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer of any Class R-I Certificate is to
be made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or any of its affiliates), then the Certificate Registrar shall refuse
to register such Transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
Exhibit F-2 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such Transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R-I
Certificates under the
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<PAGE>
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-I Certificate
without registration or qualification. Any Class R-I Certificateholder desiring
to effect such a Transfer shall, and upon acquisition of its Class R-I
Certificate agrees to, indemnify the Trustee, the Certificate Registrar and the
Depositor against any liability that may result if the Transfer is not so exempt
or is not made in accordance with such federal and state laws.
No Transfer of a Class R-I Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-1 Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of Transfer of
a Class R-1 Certificate, the Certificate Registrar shall have the right to
require the prospective Transferee of such Certificate to execute a
certification substantially in the form of Exhibit G to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
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<PAGE>
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of this Certificate to
such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that doing so will not cause
any portion of the Trust Fund which is designated as a REMIC in the Agreement to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the Transfer of any Class R-I Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the Transfer of a Class R-I
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for the
FHLMC, a majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than
certain
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<PAGE>
farmers' cooperatives described in Section 521 of the Code) which is exempt from
the tax imposed by Chapter I of the Code (including the tax imposed by Section
511 of the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-I Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-I Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is includible in gross income for United States federal
income tax purposes regardless of its source, or a trust if a court within the
U.S. is able to exercise primary supervision over the administration of the
trust and one or more U.S. fiduciaries have the authority to control all
substantial decisions of the trust.
No service charge will be imposed for any registration of transfer
or exchange of Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in
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<PAGE>
the Trust Fund, and (ii) the purchase by the Majority Subordinate
Certificateholder, the Depositor, the Master Servicer or the Special Servicer at
a price determined as provided in the Agreement of all Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Majority Subordinate Certificateholder, the Depositor, the Master
Servicer or the Special Servicer, in that order, to elect to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to elect to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of election being less than
1% of the aggregate Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the Transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be made by check payable to ____________________
________________________________________________________________________________
and mailed to _________________________________________________________________.
Applicable statements and notices should be mailed to ______________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-14
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1999 this Class R-II Certificate: 100%
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO ALL OF THE REMIC I REGULAR INTERESTS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS R-II
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX-RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
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<PAGE>
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Class R-II Certificate (obtained by
dividing the principal amount of this Class R-II Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-II Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date")(provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount, if any, required to be distributed to the Holders of
this Class R-II Certificate on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-II
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
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<PAGE>
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form
only without coupons, representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Class R-II Certificates are exchangeable for new Class R-II
Certificates as authorized in the Agreement, evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated Transferee or Transferees.
No Transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer of any Class R-II Certificate is to
be made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or any of its affiliates), then the Certificate Registrar shall refuse
to register such Transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
Exhibit F-2 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such Transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated
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<PAGE>
to register or qualify the Class R-II Certificates under the Securities Act or
any other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class R-II Certificate without
registration or qualification. Any Class R-II Certificateholder desiring to
effect such a Transfer shall, and upon acquisition of its Class R-II Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the Transfer is not so exempt or is not
made in accordance with such federal and state laws.
No Transfer of a Class R-II Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including, without
limitation; any insurance company using assets in its general or separate
account that may constitute assets of a Plan). As a condition to its
registration of Transfer of a Class R-II Certificate, the Certificate Registrar
shall have the right to require the prospective Transferee of such Certificate
to execute a certification substantially in the form of Exhibit G to the
Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest
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<PAGE>
in this Certificate, it will endeavor to remain a Permitted Transferee, and that
it has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to
be bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that doing so will not cause
any portion of the Trust Fund which is designated as a REMIC in the Agreement to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the Transfer of any Class R-II Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the Transfer of a Class R-II
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for the
FHLMC, a majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any
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<PAGE>
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter I of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel provided to it that
the holding of an Ownership Interest in a Class R-II Certificate by such Person
may cause the Trust Fund or any Person having an Ownership Interest in any Class
of Certificates (other than such Person) to incur a liability for any federal
tax imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Class R-II Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is includible in gross income for United States federal
income tax purposes regardless of its source, or a trust if a court within the
U.S. is able to exercise primary supervision over the administration of the
trust and one or more U.S. fiduciaries have the authority to control all
substantial decisions of the trust.
No service charge will be imposed for any registration of transfer
or exchange of Class R-II Certificates, but the Certificate Registrar may
require payment of a but sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final
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<PAGE>
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the purchase
by the Majority Subordinate Certificateholder, the Depositor, the Master
Servicer or the Special Servicer at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Majority Subordinate
Certificateholder, the Depositor, the Master Servicer or the Special Servicer,
in that order, to elect to purchase from the Trust Fund all Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the Certificates; however, such right to elect to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of election being less than 1% of the aggregate Cut-Off Date Balance of the
Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee, and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the Transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be by check made payable to ____________________
________________________________________________________________________________
and mailed to _________________________________________________________________.
Applicable statements and notices should be mailed to
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-15
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MERRILL LYNCH MORTGAGE INVESTORS, INC.,
SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1999 this Class R-III Certificate: 100%
Closing Date: November 4, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $592,445,159
First Distribution Date:
December 15, 1999
Master Servicer: Trustee:
ORIX Real Estate Capital Markets, LLC Norwest Bank Minnesota, National
Association
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY OF THE STATEMENTS
CONTAINED HEREIN OR THE VALIDITY OR SUFFICIENCY OF THE CERTIFICATES OR THE
MORTGAGE LOANS AND HAS EXECUTED THIS CERTIFICATE IN ITS LIMITED CAPACITY UNDER
THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS R-III
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN,
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<PAGE>
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Class R-III Certificate (obtained by
dividing the principal amount of this Class R-III Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-III Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), ORIX Real Estate Capital
Markets, LLC (hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC
(hereinafter called the "Special Servicer", which term includes any successor
entities under the Agreement), and Norwest Bank Minnesota, National Association
(hereinafter called the "Trustee", which terms include any successor entities
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date")(provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the related Determination Date), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount, if any, required to be distributed to the Holders of
this Class R-III Certificate on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-III
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certifiate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage
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<PAGE>
Loans, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Certificate Account, the
Distribution Account and, if established, the REO Account may be made from time
to time for purposes other than, and, in certain cases, prior to, distributions
to Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form
only without coupons, representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Class R-III Certificates are exchangeable for new Class R-III
Certificates as authorized in the Agreement evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated Transferee or Transferees.
No Transfer of any Class R-III Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer of any Class R-III Certificate is
to be without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or any of its affiliates), then the Certificate Registrar shall refuse
to register such Transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
Exhibit F-2 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such Transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such
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<PAGE>
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-III Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-III
Certificate without registration or qualification. Any Class R-III
Certificateholder desiring to effect such a Transfer shall, and upon acquisition
of its Class R-III Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
Transfer is not so exempt or is not made in accordance with such federal and
state laws.
No Transfer of a Class R-III Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-III Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan (including, without
limitation; any insurance company using assets in its general or separate
account that may constitute assets of a Plan). As a condition to its
registration of Transfer of a Class R-III Certificate, the Certificate Registrar
shall have the right to require the prospective Transferee of such Certificate
to execute a certification substantially in the form of Exhibit G to the
Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other
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<PAGE>
things, that such Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in this Certificate as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of Section 5.02(d)
of the Agreement and agrees to be bound by them. Notwithstanding the delivery of
a Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of this Certificate to
such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that doing so will not cause
any portion of the Trust Fund which is designated as a REMIC in the Agreement to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the Transfer of any Class R-III Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the Transfer of a Class R-III
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the
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<PAGE>
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-III Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Class R-III Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is includible in gross income for United States federal
income tax purposes regardless of its source, or a trust if a court within the
U.S. is able to exercise primary supervision over the administration of the
trust and one or more U.S. fiduciaries have the authority to control all
substantial decisions of the trust.
No service charge will be imposed for any registration of transfer
or exchange of Class R-III Certificates, but the Certificate Registrar may
require payment of a but sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-III Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
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<PAGE>
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Majority Subordinate Certificateholder,
the Depositor, the Master Servicer or the Special Servicer at a price determined
as provided in the Agreement of all Mortgage Loans and each REO Property
remaining in the Trust Fund. The Agreement permits, but does not require, the
Majority Subordinate Certificateholder, the Depositor, the Master Servicer or
the Special Servicer, in that order, to elect to purchase from the Trust Fund
all Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
elect to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of election being less than 1% of the aggregate
Cut-Off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 51% of the Voting Rights allocated
to the affected Classes. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the Transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund (or designated portions thereof) as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, the Holder of this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
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<PAGE>
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: November 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
-11-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be by check made payable to ____________________
________________________________________________________________________________
and mailed to _________________________________________________________________.
Applicable statements and notices should be mailed to
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
-12-
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
B-1
<PAGE>
Mortgage Loan Schedule MLMI 1999-C1
<TABLE>
<CAPTION>
Control No. Property Name Property Type Address
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ML-100 954-960 Chapel Street Mixed 954-960 Chapel Street
ML-101 1100 W. Ewing Street Industrial 1100 - 1120 W. Ewing St.
ML-103 Creekside Apartments Multifamily 7501 Chesterfield
ML-104 Equivest Industrial Center Industrial 500 Washington Street
ML-106 Palm Terrace Estates Mobile Home Park 2711 Mar Vista Drive
ML-107 Potomac Heights Apts Multifamily 1001 Palmer Road
ML-108 585-591-597 Prospect Place Apts. Multifamily 585-591-597 Prospect Place
ML-109 RCA - Waterford Apartments Multifamily 900 East Randol Mill Road
ML-110 Moulton Plaza Retail 28083 Moulton Parkway
ML-111 Fairways Apartments Multifamily 1450 N Highway 360
ML-112 Hempstead Village Commons Retail 300 Peninsula Boulevard
ML-114 247 and 251-253 West 34th St. Retail 247 and 251-253 West 34th St.
ML-115 9033 Wilshire Medical Bldg Mixed 9033 Wilshire Blvd
ML-116 Canyon Crest Village Apts Multifamily 5200 Chicago Avenue
ML-117 Pond View Corporate Center Office 74 & 76 Batterson Park Rd
ML-124 Saw Mill Multifamily 6900 Saw Mill Village Drive
ML-125 Spring Valley Multifamily 37850 Spring Lane
ML-126 Hampton Point Multifamily 3340 Hampton Point Drive
ML-128 Hampton Inn O'Hare Hospitality 3939 N. Mannheim Road
ML-129 Tanglewood Apartments Multifamily 2217 Tanglewood Drive
ML-131 Milford Chase/Milford Hunt Multifamily See Below
ML-131a Milford Chase Multifamily 68 W. Main St.
ML-131b Milford Hunt Multifamily 260 W. River Road
ML-132 Granada Self Storage Self Storage 201 W. Stassney Lane West
ML-134 2551 Tellabs Dr. Building Industrial 2551 Tellabs Dr.
ML-135 Avis Rent-A-Car Other 68-70 East 11th Street
ML-136 Breckenridge Farms Retail Blue Lake Blvd. & Pole Line Road
ML-137 Ocean Mist Resort Hospitality 97 South Shore Drive
ML-138 Sea Crest Oceanfront Resort & Conference Center Hospitality 350 Quaker Road
ML-139 Dobson Guadalupe Plaza Retail 2039 West Guadalupe Road
ML-140 Eldorado Village Phase I Retail 5100 Eldorado Villiage Pkwy
ML-143 Lambda Building Industrial 515 Broad Hollow Road
ML-144 MicroSemi Corp. Building Industrial 3101 W. Segerstrom Avenue
ML-145 Office Depot - Newport News Retail 11971 Jefferson Avenue
ML-147 Quail Park IV Office 2810 & 2820 W. Charleston Blvd.
ML-148 Torrey Hills Corporate Centre Office 11250 El Camino Real
ML-151 57-13 49th Street (Maspeth) Industrial 57-13 49th Street
ML-152 Augusta Office Building Office 1502 Augusta
ML-154 Woodgate Apartments Multifamily 1468 Enfield St.
ML-156 College Square Retail SWC Alondra Blvd. & Studebaker Road
ORIX-1825 The Bayview Office Building Office 1040 Bayview Drive
ORIX-2104 Kingsgate Shopping Center Retail 8422 Fondren Road
ORIX-2187 Arsenal Street Shopping Center Retail 160 Coleman Avenue
ORIX-2507 Garden Villa Nursing Home 106 Del Norte Drive
ORIX-2508 Kingsland Hills Care Center Nursing Home 1229 Highway 1431 West
ORIX-2509 New Covenant Care Center of Dinuba Nursing Home 1730 South College Road
ORIX-2596 Seguin Nursing & Rehab Center Nursing Home 1637 N. King St.
ORIX-2607 Loveland Tech Center Industrial 4007 & 4015 South Lincoln Ave.
ORIX-2939 Beverly Hills Medical Tower Office 1125 South Beverly Drive
ORIX-2965 Frazier-King Building Office 100 East Royal Lane
ORIX-3100 HKS Building Office 1919 McKinney Avenue
ORIX-3108 Centre East Shopping Center Retail 10600 East Washington Street
ORIX-3115 The Financial Center Office 24022 Calle de la Plata
ORIX-3151 Spring Cypress Village Shopping Center Retail 22432-22560 State Highway 249
ORIX-3161 Woodland Park Plaza Retail 1063-1131 Highway 24
ORIX-3208 Putnam Plaza Retail 1245 Dixwell Avenue
ORIX-3238 Southeast Crossing Retail 3320 Hwy 110
ORIX-3256 Kingstown Plaza Shopping Center Retail 6615-6669 Post Road
ORIX-3257 Spectrum Club - Thousand Oaks Health Club 2400 Willow Lane
ORIX-3266 Northpark Plaza Retail 10343-10355 Federal Boulevard
ORIX-3290 250 Beacham Street Industrial 250 Beacham Street (Units 5-15)
ORIX-3325 Lakeside Plaza Office Center Office 5205, 5215, 5225 Wiley Post Way
ORIX-3356 Hardaway Office Building Office 615 Main Street
ORIX-3429 Gateway 2000 - Baton Rouge Retail 9603 Cortana Place
ORIX-3430 Gateway 2000 - Brentwood Retail 1601 Westgate Circle
ORIX-3431 Gateway 2000 - El Paso Retail 820 Sunland Park Drive
ORIX-3432 Gateway 2000 - Jackson Retail 5722 East I-55 Frontage Road
ORIX-3433 Gateway 2000 - Little Rock Retail 12018 Chenal Parkway
ORIX-3434 Gateway 2000 - Newport News Retail 12249 Jefferson Avenue
ORIX-3435 Gateway 2000 - Oklahoma City Retail 4001 Northwest Expressway
ORIX-3436 Gateway 2000 - Plano Retail 1300 North Central Expressway
ORIX-3438 Raymour & Flanigan - Southampton Retail 427 Street Road
PW-6045 Redbud Plaza Retail 210-282 Norman Center Court
PW-6132 Arlington Apartments Multifamily 2700 Whitney Avenue
PW-6376 Shadowbrook Apartments Multifamily 2200 Westbend Parkway
PW-6437 175-181 Broadway Multifamily 175-181 Broadway
PW-6482 Fayetteville/Jacksonville Office Portfolio Office Various
PW-6482A Ramsey Street Office Building Office 6200 Ramsey Street
PW-6482B Yadkin Road Building Office 6448 Yadkin Road
PW-6482C Cliffdale Road Office Building Office 6920 Cliffdale Road
PW-6482D Henderson Drive Office Building Office 3466 Henderson Drive
PW-7043 The Woods at Frenchman's Creek Multifamily 3001 58th Avenue South
PW-7064 Oklahoma City Industrial Industrial 2500-2692 West Interstate 40
PW-7119 Washingtonville Manor MHP Mobile Home Park East Avenue & Hallock Drive
PW-7127 1485-1495 Davis Road Industrial 1485-1495 Davis Road
PW-7130 Ben White Business Park Industrial 209 East Ben White Boulevard
PW-7141 Summercreek Apartments Multifamily 11851 Belair Drive
PW-7146 Westbrook Towers Multifamily 317 West Spring Street
PW-7166 Cobblestone Apartments Multifamily 2430-2444 Whitfield Road
PW-7170 O'Connor Place Apartments Multifamily 316 West 5th Street
PW-7312 Plaza Park MHPs Mobile Home Park Various
PW-7312A Plaza MHP Mobile Home Park 2145 N. Dixie Highway
PW-7312B Spring Valley MHP Mobile Home Park 769 State Route 42
PW-7312C Blair MHP Mobile Home Park 16 Pam Lane
PW-7395 Red Lion Apartments Multifamily 4726 Narrow Lane Road
PW-7424 St. Pete Beach Apartments Multifamily 9050-9060 Blind Pass Road
PW-7562 401 N. Broad Street Office 401 N. Broad Street
PW-7710 Peachtree Village Mobile Home Park Mobile Home Park 1475 Peachtree Industrial Blvd.
PW-7781 Sherwood Lane Apartments Multifamily 4506 Sherwood Lane
PW-7789 Lexus Training Center Industrial 205 Jefferson Road
PW-7905 Blue Cross Blue Shield Building Office Carotech Boulevard
PW-7958 1399 Madison Building Office 1399 Madison Ave.
PW-8028 Tops Appliance Building Retail 1525-1535 Hart Place
PW-8064 Office Max Retail 721 East Colorado Boulevard
PW-8202 First American Building Office 8435 Stemmons Freeway
PW-8313 Crossings Apartments Multifamily 3555 Highway 544 Overpass
PW-8352 Helix Building Industrial 3078 East Sunset Road, Bldg. B
PW-8703 Virginia Apartment Portfolio Multifamily Various
PW-8703A Norport Apartments Multifamily 9 Seminole Drive
PW-8703B Colonial Court Multifamily 58 Colonial Court
PW-8703C Lee Hall Multifamily 523 Summit Street
PW-8703D River Drive Apartments Multifamily 209A 73rd Street
PW-7942 Bend River Mall Retail 3188 N. Highway 97
PW-6410 Gateway Plaza Retail 544-750 N. Third Street
PW-8085 Pepperwood Apartments Multifamily 13725 Christine Court
PW-8763 Sunset Hills Apartments Multifamily 2825 Bluegrass Lane
PW-7790 Smithtown Bypass Office 732 & 738 Smithtown Bypass
PW-8694 Eckerd's Building Industrial 301 South Trade Center Parkway
PW-6232 310 Merrick Road Retail 310 Merrick Road
<CAPTION>
Cut-Off Date
Control No. Property Name City State Zip Code Balance
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street New Haven CT 06510 1,096,788.55
ML-101 1100 W. Ewing Street Seattle WA 98119 8,269,850.45
ML-103 Creekside Apartments Dallas TX 75237 8,503,715.46
ML-104 Equivest Industrial Center Norristown PA 19401 1,270,192.26
ML-106 Palm Terrace Estates Aptos CA 95003 797,997.58
ML-107 Potomac Heights Apts Fort Washington MD 20744 26,086,863.88
ML-108 585-591-597 Prospect Place Apts. Brooklyn NY 11238 1,317,108.64
ML-109 RCA - Waterford Apartments Arlington TX 76011 7,488,419.99
ML-110 Moulton Plaza Laguna Niguel CA 92677 2,538,293.34
ML-111 Fairways Apartments Grand Prairie TX 75050 9,507,209.95
ML-112 Hempstead Village Commons Hempstead NY 11550 8,907,379.25
ML-114 247 and 251-253 West 34th St. New York NY 10001 6,982,314.24
ML-115 9033 Wilshire Medical Bldg Beverly Hills CA 90211 6,879,599.58
ML-116 Canyon Crest Village Apts Riverside CA 92507 8,123,381.94
ML-117 Pond View Corporate Center Farmington CT 06032 20,930,804.16
ML-124 Saw Mill Columbus OH 43235 12,460,914.75
ML-125 Spring Valley Farmington Hills MI 48331 11,962,178.22
ML-126 Hampton Point Silver Spring MD 20904 18,442,153.82
ML-128 Hampton Inn O'Hare Schiller Park IL 60176 4,986,533.36
ML-129 Tanglewood Apartments Hammond IN 46323 15,969,297.09
ML-131 Milford Chase/Milford Hunt Milford CT 06460 2,922,490.48
ML-131a Milford Chase Milford CT 06460
ML-131b Milford Hunt Milford CT 06460
ML-132 Granada Self Storage Austin TX 78745 1,844,916.12
ML-134 2551 Tellabs Dr. Building Round Rock TX 78664 6,252,260.03
ML-135 Avis Rent-A-Car New York NY 10003 2,393,500.56
ML-136 Breckenridge Farms Twin Falls ID 83301 4,643,850.89
ML-137 Ocean Mist Resort South Yarmouth MA 02664 2,495,292.30
ML-138 Sea Crest Oceanfront Resort & Conference Center North Falmouth MA 02556 11,777,779.63
ML-139 Dobson Guadalupe Plaza Mesa AZ 85202 3,216,174.26
ML-140 Eldorado Village Phase I McKinney TX 75070 2,096,486.48
ML-143 Lambda Building Melville NY 11747 9,338,998.65
ML-144 MicroSemi Corp. Building Santa Ana CA 92704 2,022,041.41
ML-145 Office Depot - Newport News Newport News VA 23606 2,056,000.00
ML-147 Quail Park IV Las Vegas NV 89107 11,004,848.03
ML-148 Torrey Hills Corporate Centre San Diego CA 92130 3,520,816.39
ML-151 57-13 49th Street (Maspeth) Maspeth NY 11378 2,394,997.00
ML-152 Augusta Office Building Houston TX 77057 4,165,045.53
ML-154 Woodgate Apartments Enfield CT 06082 6,491,404.44
ML-156 College Square Cerritos CA 90703 18,825,623.16
ORIX-1825 The Bayview Office Building Ft. Lauderdale FL 33304 4,843,129.08
ORIX-2104 Kingsgate Shopping Center Houston TX 77074 1,683,872.79
ORIX-2187 Arsenal Street Shopping Center Watertown NY 13601 2,809,852.74
ORIX-2507 Garden Villa El Campo TX 77437 2,402,837.46
ORIX-2508 Kingsland Hills Care Center Kingsland TX 78639 2,055,346.45
ORIX-2509 New Covenant Care Center of Dinuba Dinuba CA 93618 1,982,529.32
ORIX-2596 Seguin Nursing & Rehab Center Seguin TX 78155 1,563,741.79
ORIX-2607 Loveland Tech Center Loveland CO 80537 2,385,020.82
ORIX-2939 Beverly Hills Medical Tower Los Angeles CA 90035 5,654,145.91
ORIX-2965 Frazier-King Building Irving TX 75039 16,439,315.22
ORIX-3100 HKS Building Dallas TX 75201 7,983,038.32
ORIX-3108 Centre East Shopping Center Indianapolis IN 46229 8,966,895.33
ORIX-3115 The Financial Center Laguna Hills CA 92653 6,196,394.03
ORIX-3151 Spring Cypress Village Shopping Center Houston TX 77070 4,976,440.47
ORIX-3161 Woodland Park Plaza Woodland Park CO 80866 2,893,490.73
ORIX-3208 Putnam Plaza Hamden CT 06514 9,540,720.99
ORIX-3238 Southeast Crossing Tyler TX 75704 2,076,285.41
ORIX-3256 Kingstown Plaza Shopping Center North Kingstown RI 02852 4,208,441.44
ORIX-3257 Spectrum Club - Thousand Oaks Thousand Oaks CA 91361 8,394,533.22
ORIX-3266 Northpark Plaza Westminster CO 80221 6,243,841.84
ORIX-3290 250 Beacham Street Everett MA 02149 1,943,861.56
ORIX-3325 Lakeside Plaza Office Center Salt Lake City UT 84116 18,170,832.51
ORIX-3356 Hardaway Office Building Nashville TN 37206 2,994,997.40
ORIX-3429 Gateway 2000 - Baton Rouge Baton Rouge LA 70815 1,136,856.23
ORIX-3430 Gateway 2000 - Brentwood Brentwood TN 37027 1,637,352.68
ORIX-3431 Gateway 2000 - El Paso El Paso TX 79912 1,357,105.46
ORIX-3432 Gateway 2000 - Jackson Jackson MS 39211 1,736,253.17
ORIX-3433 Gateway 2000 - Little Rock Little Rock AR 72211 1,709,613.37
ORIX-3434 Gateway 2000 - Newport News Newport News VA 23602 1,855,133.56
ORIX-3435 Gateway 2000 - Oklahoma City Oklahoma City OK 73116 1,549,337.13
ORIX-3436 Gateway 2000 - Plano Plano TX 75074 1,641,208.88
ORIX-3438 Raymour & Flanigan - Southampton Southampton PA 18966 3,282,897.24
PW-6045 Redbud Plaza Norman OK 73072 1,893,937.21
PW-6132 Arlington Apartments Harvey LA 70058 6,390,041.56
PW-6376 Shadowbrook Apartments New Orleans LA 70114 6,388,722.18
PW-6437 175-181 Broadway Passaic NJ 07055 935,927.32
PW-6482 Fayetteville/Jacksonville Office Portfolio Fayetteville & Jacksonville NC Various 3,255,995.77
PW-6482A Ramsey Street Office Building Fayetteville NC 28311
PW-6482B Yadkin Road Building Fayetteville NC 28303
PW-6482C Cliffdale Road Office Building Fayetteville NC 28304
PW-6482D Henderson Drive Office Building Jacksonville NC 28546
PW-7043 The Woods at Frenchman's Creek St. Petersburg FL 33712 5,878,000.82
PW-7064 Oklahoma City Industrial Oklahoma City OK 73108 2,496,097.90
PW-7119 Washingtonville Manor MHP Washingtonville NY 10922 1,498,747.13
PW-7127 1485-1495 Davis Road Elgin IL 60123 1,023,566.60
PW-7130 Ben White Business Park Austin TX 77040 1,690,332.98
PW-7141 Summercreek Apartments San Antonio TX 78213 4,317,857.36
PW-7146 Westbrook Towers West Haven CT 06516 2,084,258.71
PW-7166 Cobblestone Apartments Clarksville TN 37040 1,544,810.71
PW-7170 O'Connor Place Apartments Irving TX 75060 797,212.52
PW-7312 Plaza Park MHPs Lima, London & Chillicothe OH Various 2,045,560.57
PW-7312A Plaza MHP Lima OH 45802
PW-7312B Spring Valley MHP London OH 43140
PW-7312C Blair MHP Chillicothe OH 43140
PW-7395 Red Lion Apartments Montgomery AL 36116 2,247,635.94
PW-7424 St. Pete Beach Apartments St. Pete Beach FL 33706 948,325.95
PW-7562 401 N. Broad Street Philadelphia PA 19108 6,690,462.65
PW-7710 Peachtree Village Mobile Home Park Buford GA 30518 1,920,704.91
PW-7781 Sherwood Lane Apartments Houston TX 77092 721,000.99
PW-7789 Lexus Training Center Parsippany NJ 07054 3,048,754.08
PW-7905 Blue Cross Blue Shield Building Columbia SC 29203 25,288,017.24
PW-7958 1399 Madison Building Memphis TN 38103 2,099,239.59
PW-8028 Tops Appliance Building Brooklyn NY 11224 6,789,386.28
PW-8064 Office Max Pasadena CA 91101 4,792,696.69
PW-8202 First American Building Dallas TX 75247 18,568,200.18
PW-8313 Crossings Apartments Conway SC 29526 3,645,729.56
PW-8352 Helix Building Las Vegas NV 89120 2,195,846.37
PW-8703 Virginia Apartment Portfolio Various VA Various 17,374,118.66
PW-8703A Norport Apartments Portsmouth VA 23702
PW-8703B Colonial Court Colonial Heights VA 23834
PW-8703C Lee Hall Petersburgh VA 23803
PW-8703D River Drive Apartments Newport News VA 23607
PW-7942 Bend River Mall Bend OR 97741 8,490,237.26
PW-6410 Gateway Plaza Laramie WY 82070 6,094,764.50
PW-8085 Pepperwood Apartments Tampa FL 33613 999,392.88
PW-8763 Sunset Hills Apartments Henderson NV 89104 6,343,510.01
PW-7790 Smithtown Bypass Smithtown NY 11787 3,898,646.39
PW-8694 Eckerd's Building Woodlands TX 77385 3,698,575.34
PW-6232 310 Merrick Road Rockville Center NY 11570 2,050,000.00
<CAPTION>
P&I Payment Remaining Remaining Maturity Date
Control No. Property Name (monthly) Gross Rate Term (mos) Amort (mos) ARD Date
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street 9,719.51 9.500% 116 296 7/1/09
ML-101 1100 W. Ewing Street 66,834.16 8.375% 116 296 7/1/09
ML-103 Creekside Apartments 60,267.84 7.350% 98 338 1/1/08
ML-104 Equivest Industrial Center 10,180.78 8.520% 115 319 6/1/09
ML-106 Palm Terrace Estates 5,812.13 7.780% 116 356 7/1/09
ML-107 Potomac Heights Apts 175,444.66 6.977% 103 343 6/1/08
ML-108 585-591-597 Prospect Place Apts. 10,367.66 8.040% 114 294 5/1/09
ML-109 RCA - Waterford Apartments 53,345.09 7.430% 65 341 4/1/05
ML-110 Moulton Plaza 19,296.04 8.230% 116 356 7/1/09
ML-111 Fairways Apartments 65,580.06 7.080% 63 339 2/1/05
ML-112 Hempstead Village Commons 64,563.37 7.730% 116 356 7/1/09
ML-114 247 and 251-253 West 34th St. 58,772.17 8.875% 117 297 8/1/09
ML-115 9033 Wilshire Medical Bldg 51,469.16 8.068% 117 357 8/1/09
ML-116 Canyon Crest Village Apts 59,492.91 7.830% 139 355 6/1/11
ML-117 Pond View Corporate Center 152,701.88 7.790% 115 355 6/1/09
ML-124 Saw Mill 87,401.81 7.500% 115 355 6/1/09
ML-125 Spring Valley 83,659.37 7.470% 91 355 6/1/07
ML-126 Hampton Point 129,354.68 7.500% 115 355 6/1/09
ML-128 Hampton Inn O'Hare 36,404.75 7.500% 117 321 8/1/09
ML-129 Tanglewood Apartments 116,341.44 7.790% 117 357 8/1/09
ML-131 Milford Chase/Milford Hunt 21,466.23 7.875% 117 357 8/1/09
ML-131a Milford Chase
ML-131b Milford Hunt
ML-132 Granada Self Storage 14,951.82 8.420% 117 297 8/1/09
ML-134 2551 Tellabs Dr. Building 47,290.46 8.190% 118 358 9/1/09
ML-135 Avis Rent-A-Car 19,528.63 8.500% 117 297 8/1/09
ML-136 Breckenridge Farms 34,086.67 7.875% 118 358 9/1/09
ML-137 Ocean Mist Resort 20,305.33 8.480% 118 298 9/1/09
ML-138 Sea Crest Oceanfront Resort & Conference Center 95,841.16 8.480% 118 298 9/1/09
ML-139 Dobson Guadalupe Plaza 24,752.12 8.375% 118 358 9/1/09
ML-140 Eldorado Village Phase I 16,144.79 8.375% 117 357 8/1/09
ML-143 Lambda Building 72,176.12 8.420% 118 358 9/1/09
ML-144 MicroSemi Corp. Building 15,574.20 8.390% 119 359 10/1/09
ML-145 Office Depot - Newport News 15,989.14 8.500% 120 360 11/1/09
ML-147 Quail Park IV 81,805.04 8.000% 117 357 8/1/09
ML-148 Torrey Hills Corporate Centre 27,109.33 8.380% 118 358 9/1/09
ML-151 57-13 49th Street (Maspeth) 19,521.99 8.500% 118 298 9/1/09
ML-152 Augusta Office Building 32,054.77 8.375% 118 358 9/1/09
ML-154 Woodgate Apartments 47,648.04 7.875% 118 358 9/1/09
ML-156 College Square 139,581.24 7.980% 118 358 9/1/09
ORIX-1825 The Bayview Office Building 33,161.17 7.170% 104 344 7/1/08
ORIX-2104 Kingsgate Shopping Center 13,403.65 8.250% 110 290 1/1/09
ORIX-2187 Arsenal Street Shopping Center 20,452.29 7.850% 110 350 1/1/09
ORIX-2507 Garden Villa 18,636.29 7.950% 111 291 2/1/09
ORIX-2508 Kingsland Hills Care Center 15,673.07 7.750% 111 291 2/1/09
ORIX-2509 New Covenant Care Center of Dinuba 15,702.24 8.200% 111 291 2/1/09
ORIX-2596 Seguin Nursing & Rehab Center 12,386.53 8.220% 112 292 3/1/09
ORIX-2607 Loveland Tech Center 17,360.04 7.850% 110 350 1/1/09
ORIX-2939 Beverly Hills Medical Tower 44,319.21 7.830% 113 274 4/1/09
ORIX-2965 Frazier-King Building 115,370.39 7.500% 114 354 5/1/09
ORIX-3100 HKS Building 57,977.79 7.870% 116 356 7/1/09
ORIX-3108 Centre East Shopping Center 63,601.53 7.610% 114 354 5/1/09
ORIX-3115 The Financial Center 45,409.44 7.940% 112 352 3/1/09
ORIX-3151 Spring Cypress Village Shopping Center 36,871.52 7.750% 114 318 5/1/09
ORIX-3161 Woodland Park Plaza 21,718.11 8.220% 116 356 7/1/09
ORIX-3208 Putnam Plaza 73,634.38 8.530% 118 358 9/1/09
ORIX-3238 Southeast Crossing 15,860.92 8.410% 116 356 7/1/09
ORIX-3256 Kingstown Plaza Shopping Center 31,075.22 8.050% 117 357 8/1/09
ORIX-3257 Spectrum Club - Thousand Oaks 70,205.11 8.950% 119 299 10/1/09
ORIX-3266 Northpark Plaza 46,560.16 8.150% 116 356 7/1/09
ORIX-3290 250 Beacham Street 14,950.48 8.290% 115 331 6/1/09
ORIX-3325 Lakeside Plaza Office Center 132,911.32 7.950% 117 357 8/1/09
ORIX-3356 Hardaway Office Building 24,399.89 8.620% 118 298 9/1/09
ORIX-3429 Gateway 2000 - Baton Rouge 8,677.75 8.410% 118 358 9/5/09
ORIX-3430 Gateway 2000 - Brentwood 12,498.10 8.410% 118 358 9/5/09
ORIX-3431 Gateway 2000 - El Paso 10,362.98 8.410% 117 357 8/5/09
ORIX-3432 Gateway 2000 - Jackson 13,253.02 8.410% 118 358 9/5/09
ORIX-3433 Gateway 2000 - Little Rock 13,054.76 8.410% 117 357 8/5/09
ORIX-3434 Gateway 2000 - Newport News 14,160.45 8.410% 118 358 9/5/09
ORIX-3435 Gateway 2000 - Oklahoma City 11,830.87 8.410% 117 357 8/5/09
ORIX-3436 Gateway 2000 - Plano 12,532.41 8.410% 117 357 8/5/09
ORIX-3438 Raymour & Flanigan - Southampton 25,569.86 8.630% 118 358 9/1/09
PW-6045 Redbud Plaza 13,941.53 8.000% 114 354 5/1/09
PW-6132 Arlington Apartments 47,184.20 8.050% 117 357 8/1/09
PW-6376 Shadowbrook Apartments 48,983.86 8.450% 116 356 7/1/09
PW-6437 175-181 Broadway 7,474.35 8.350% 115 295 6/1/09
PW-6482 Fayetteville/Jacksonville Office Portfolio 26,282.61 8.500% 117 297 8/1/09
PW-6482A Ramsey Street Office Building
PW-6482B Yadkin Road Building
PW-6482C Cliffdale Road Office Building
PW-6482D Henderson Drive Office Building
PW-7043 The Woods at Frenchman's Creek 43,218.73 8.000% 116 356 7/1/09
PW-7064 Oklahoma City Industrial 19,756.85 8.800% 116 356 7/1/09
PW-7119 Washingtonville Manor MHP 11,547.45 7.970% 119 299 10/1/09
PW-7127 1485-1495 Davis Road 7,808.84 8.400% 117 357 8/1/09
PW-7130 Ben White Business Park 12,952.40 7.850% 114 294 5/1/09
PW-7141 Summercreek Apartments 31,470.67 7.900% 115 355 6/1/09
PW-7146 Westbrook Towers 15,907.17 8.400% 116 356 7/1/09
PW-7166 Cobblestone Apartments 12,272.81 8.300% 116 296 7/1/09
PW-7170 O'Connor Place Apartments 6,906.34 9.350% 115 295 6/1/09
PW-7312 Plaza Park MHPs 14,757.35 7.800% 116 356 7/1/09
PW-7312A Plaza MHP
PW-7312B Spring Valley MHP
PW-7312C Blair MHP
PW-7395 Red Lion Apartments 16,903.50 8.250% 118 358 9/1/09
PW-7424 St. Pete Beach Apartments 7,271.04 8.450% 116 356 7/1/09
PW-7562 401 N. Broad Street 54,150.93 9.050% 116 356 7/1/09
PW-7710 Peachtree Village Mobile Home Park 13,724.48 7.700% 116 356 7/1/09
PW-7781 Sherwood Lane Apartments 6,129.40 9.125% 116 296 7/1/09
PW-7789 Lexus Training Center 22,913.63 8.250% 119 359 10/1/09
PW-7905 Blue Cross Blue Shield Building 183,003.73 7.850% 119 359 10/1/09
PW-7958 1399 Madison Building 16,221.66 8.550% 119 359 10/1/09
PW-8028 Tops Appliance Building 53,738.64 8.800% 116 356 7/1/09
PW-8064 Office Max 35,639.86 8.125% 117 357 8/1/09
PW-8202 First American Building 138,992.60 8.200% 118 358 9/1/09
PW-8313 Crossings Apartments 26,401.72 7.850% 118 358 9/1/09
PW-8352 Helix Building 16,979.96 8.000% 118 298 9/1/09
PW-8703 Virginia Apartment Portfolio 130,109.28 8.200% 117 357 8/1/09
PW-8703A Norport Apartments
PW-8703B Colonial Court
PW-8703C Lee Hall
PW-8703D River Drive Apartments
PW-7942 Bend River Mall 61,896.60 7.920% 118 358 9/1/09
PW-6410 Gateway Plaza 46,264.39 8.350% 118 358 9/1/09
PW-8085 Pepperwood Apartments 8,529.34 9.200% 119 299 10/1/09
PW-8763 Sunset Hills Apartments 48,152.57 8.350% 118 358 9/1/09
PW-7790 Smithtown Bypass 30,403.20 8.650% 119 359 10/1/09
PW-8694 Eckerd's Building 28,187.99 8.400% 119 359 10/1/09
PW-6232 310 Merrick Road 15,908.24 8.600% 120 360 11/1/09
<CAPTION>
Ground Balloon/Hyperam/ Sub Master
Control No. Property Name Lease Fully Amort Servicing fees Servicing fees
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street No Balloon incl. In Master 0.070
ML-101 1100 W. Ewing Street No Balloon incl. In Master 0.070
ML-103 Creekside Apartments No Balloon incl. In Master 0.070
ML-104 Equivest Industrial Center No Balloon incl. In Master 0.070
ML-106 Palm Terrace Estates No Balloon incl. In Master 0.070
ML-107 Potomac Heights Apts No Hyperam incl. In Master 0.070
ML-108 585-591-597 Prospect Place Apts. No Balloon incl. In Master 0.070
ML-109 RCA - Waterford Apartments No Balloon incl. In Master 0.070
ML-110 Moulton Plaza No Balloon incl. In Master 0.070
ML-111 Fairways Apartments No Balloon incl. In Master 0.070
ML-112 Hempstead Village Commons No Balloon incl. In Master 0.070
ML-114 247 and 251-253 West 34th St. No Balloon incl. In Master 0.070
ML-115 9033 Wilshire Medical Bldg No Balloon incl. In Master 0.070
ML-116 Canyon Crest Village Apts No Balloon incl. In Master 0.070
ML-117 Pond View Corporate Center No Balloon incl. In Master 0.070
ML-124 Saw Mill No Balloon 0.03 0.000
ML-125 Spring Valley No Balloon 0.03 0.000
ML-126 Hampton Point No Balloon 0.03 0.000
ML-128 Hampton Inn O'Hare No Balloon incl. In Master 0.070
ML-129 Tanglewood Apartments No Balloon incl. In Master 0.070
ML-131 Milford Chase/Milford Hunt See below Balloon incl. In Master 0.070
ML-131a Milford Chase
ML-131b Milford Hunt
ML-132 Granada Self Storage No Balloon incl. In Master 0.070
ML-134 2551 Tellabs Dr. Building No Balloon incl. In Master 0.070
ML-135 Avis Rent-A-Car No Balloon incl. In Master 0.070
ML-136 Breckenridge Farms No Balloon incl. In Master 0.070
ML-137 Ocean Mist Resort No Balloon incl. In Master 0.070
ML-138 Sea Crest Oceanfront Resort & Conference Center No Balloon incl. In Master 0.070
ML-139 Dobson Guadalupe Plaza No Balloon incl. In Master 0.070
ML-140 Eldorado Village Phase I No Balloon incl. In Master 0.070
ML-143 Lambda Building No Balloon incl. In Master 0.070
ML-144 MicroSemi Corp. Building No Balloon incl. In Master 0.070
ML-145 Office Depot - Newport News No Balloon incl. In Master 0.070
ML-147 Quail Park IV No Balloon incl. In Master 0.070
ML-148 Torrey Hills Corporate Centre No Balloon incl. In Master 0.070
ML-151 57-13 49th Street (Maspeth) No Balloon incl. In Master 0.070
ML-152 Augusta Office Building No Balloon incl. In Master 0.070
ML-154 Woodgate Apartments No Balloon incl. In Master 0.070
ML-156 College Square No Balloon incl. In Master 0.070
ORIX-1825 The Bayview Office Building No Balloon incl. In Master 0.050
ORIX-2104 Kingsgate Shopping Center No Balloon incl. In Master 0.125
ORIX-2187 Arsenal Street Shopping Center No Balloon incl. In Master 0.100
ORIX-2507 Garden Villa No Balloon incl. In Master 0.100
ORIX-2508 Kingsland Hills Care Center No Balloon incl. In Master 0.100
ORIX-2509 New Covenant Care Center of Dinuba No Balloon incl. In Master 0.100
ORIX-2596 Seguin Nursing & Rehab Center No Balloon incl. In Master 0.125
ORIX-2607 Loveland Tech Center No Balloon incl. In Master 0.100
ORIX-2939 Beverly Hills Medical Tower Yes Balloon incl. In Master 0.033
ORIX-2965 Frazier-King Building No Balloon incl. In Master 0.020
ORIX-3100 HKS Building No Balloon incl. In Master 0.020
ORIX-3108 Centre East Shopping Center No Balloon incl. In Master 0.020
ORIX-3115 The Financial Center No Balloon incl. In Master 0.033
ORIX-3151 Spring Cypress Village Shopping Center No Balloon incl. In Master 0.033
ORIX-3161 Woodland Park Plaza No Balloon incl. In Master 0.100
ORIX-3208 Putnam Plaza No Balloon incl. In Master 0.020
ORIX-3238 Southeast Crossing No Balloon incl. In Master 0.100
ORIX-3256 Kingstown Plaza Shopping Center No Balloon incl. In Master 0.045
ORIX-3257 Spectrum Club - Thousand Oaks No Balloon incl. In Master 0.020
ORIX-3266 Northpark Plaza No Balloon incl. In Master 0.033
ORIX-3290 250 Beacham Street No Balloon incl. In Master 0.125
ORIX-3325 Lakeside Plaza Office Center No Balloon incl. In Master 0.020
ORIX-3356 Hardaway Office Building No Balloon incl. In Master 0.075
ORIX-3429 Gateway 2000 - Baton Rouge No Balloon incl. In Master 0.125
ORIX-3430 Gateway 2000 - Brentwood No Balloon incl. In Master 0.125
ORIX-3431 Gateway 2000 - El Paso No Balloon incl. In Master 0.125
ORIX-3432 Gateway 2000 - Jackson No Balloon incl. In Master 0.125
ORIX-3433 Gateway 2000 - Little Rock No Balloon incl. In Master 0.125
ORIX-3434 Gateway 2000 - Newport News No Balloon incl. In Master 0.125
ORIX-3435 Gateway 2000 - Oklahoma City No Balloon incl. In Master 0.125
ORIX-3436 Gateway 2000 - Plano No Balloon incl. In Master 0.125
ORIX-3438 Raymour & Flanigan - Southampton No Balloon incl. In Master 0.075
PW-6045 Redbud Plaza No Balloon incl. In Master 0.070
PW-6132 Arlington Apartments No Balloon incl. In Master 0.070
PW-6376 Shadowbrook Apartments No Balloon incl. In Master 0.070
PW-6437 175-181 Broadway No Balloon incl. In Master 0.070
PW-6482 Fayetteville/Jacksonville Office Portfolio See below Balloon incl. In Master 0.070
PW-6482A Ramsey Street Office Building incl. In Master 0.070
PW-6482B Yadkin Road Building incl. In Master 0.070
PW-6482C Cliffdale Road Office Building incl. In Master 0.070
PW-6482D Henderson Drive Office Building incl. In Master 0.070
PW-7043 The Woods at Frenchman's Creek No Balloon
PW-7064 Oklahoma City Industrial No Balloon incl. In Master 0.070
PW-7119 Washingtonville Manor MHP No Balloon incl. In Master 0.070
PW-7127 1485-1495 Davis Road No Balloon incl. In Master 0.070
PW-7130 Ben White Business Park No Balloon incl. In Master 0.070
PW-7141 Summercreek Apartments No Balloon
PW-7146 Westbrook Towers No Balloon
PW-7166 Cobblestone Apartments No Balloon
PW-7170 O'Connor Place Apartments No Balloon incl. In Master 0.070
PW-7312 Plaza Park MHPs See below Balloon incl. In Master 0.070
PW-7312A Plaza MHP No incl. In Master 0.070
PW-7312B Spring Valley MHP No incl. In Master 0.070
PW-7312C Blair MHP No incl. In Master 0.070
PW-7395 Red Lion Apartments No Balloon incl. In Master 0.070
PW-7424 St. Pete Beach Apartments No Balloon incl. In Master 0.070
PW-7562 401 N. Broad Street No Balloon incl. In Master 0.070
PW-7710 Peachtree Village Mobile Home Park No Balloon incl. In Master 0.070
PW-7781 Sherwood Lane Apartments No Balloon
PW-7789 Lexus Training Center No Hyperam
PW-7905 Blue Cross Blue Shield Building No Hyperam
PW-7958 1399 Madison Building No Hyperam incl. In Master 0.070
PW-8028 Tops Appliance Building No Hyperam incl. In Master 0.070
PW-8064 Office Max No Hyperam incl. In Master 0.070
PW-8202 First American Building No Hyperam incl. In Master 0.070
PW-8313 Crossings Apartments No Balloon incl. In Master 0.070
PW-8352 Helix Building No Balloon incl. In Master 0.070
PW-8703 Virginia Apartment Portfolio See below Balloon incl. In Master 0.070
PW-8703A Norport Apartments No
PW-8703B Colonial Court No
PW-8703C Lee Hall No
PW-8703D River Drive Apartments No
PW-7942 Bend River Mall No Balloon incl. In Master 0.070
PW-6410 Gateway Plaza No Balloon incl. In Master 0.070
PW-8085 Pepperwood Apartments No Balloon incl. In Master 0.070
PW-8763 Sunset Hills Apartments No Balloon incl. In Master 0.070
PW-7790 Smithtown Bypass No Hyperam incl. In Master 0.070
PW-8694 Eckerd's Building No Balloon incl. In Master 0.070
PW-6232 310 Merrick Road No Hyperam incl. In Master 0.070
<CAPTION>
Mortgage Interest Cross
Control No. Property Name Loan Seller Subservicer Defeasance Accrual defaulted
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street MLMC ORIX Yes Actual/360 no
ML-101 1100 W. Ewing Street MLMC ORIX Yes Actual/360 no
ML-103 Creekside Apartments MLMC ORIX Actual/360 no
ML-104 Equivest Industrial Center MLMC ORIX Yes Actual/360 no
ML-106 Palm Terrace Estates MLMC ORIX Yes Actual/360 no
ML-107 Potomac Heights Apts MLMC ORIX Yes Actual/360 no
ML-108 585-591-597 Prospect Place Apts. MLMC ORIX Yes Actual/360 no
ML-109 RCA - Waterford Apartments MLMC ORIX Actual/360 no
ML-110 Moulton Plaza MLMC ORIX Yes Actual/360 no
ML-111 Fairways Apartments MLMC ORIX Actual/360 no
ML-112 Hempstead Village Commons MLMC ORIX Yes Actual/360 no
ML-114 247 and 251-253 West 34th St. MLMC ORIX Yes Actual/360 no
ML-115 9033 Wilshire Medical Bldg MLMC ORIX Yes Actual/360 no
ML-116 Canyon Crest Village Apts MLMC ORIX Yes Actual/360 no
ML-117 Pond View Corporate Center MLMC ORIX Actual/360 no
ML-124 Saw Mill MLMC Chase Yes Actual/360 no
ML-125 Spring Valley MLMC Chase Yes Actual/360 no
ML-126 Hampton Point MLMC Chase Yes Actual/360 no
ML-128 Hampton Inn O'Hare MLMC ORIX Yes Actual/360 no
ML-129 Tanglewood Apartments MLMC ORIX Yes Actual/360 no
ML-131 Milford Chase/Milford Hunt MLMC ORIX Actual/360 no
ML-131a Milford Chase
ML-131b Milford Hunt
ML-132 Granada Self Storage MLMC ORIX Yes Actual/360 no
ML-134 2551 Tellabs Dr. Building MLMC ORIX Actual/360 no
ML-135 Avis Rent-A-Car MLMC ORIX Yes Actual/360 no
ML-136 Breckenridge Farms MLMC ORIX Yes Actual/360 no
ML-137 Ocean Mist Resort MLMC ORIX Yes Actual/360 no
ML-138 Sea Crest Oceanfront Resort & Conference Center MLMC ORIX Yes Actual/360 no
ML-139 Dobson Guadalupe Plaza MLMC ORIX Yes Actual/360 no
ML-140 Eldorado Village Phase I MLMC ORIX Yes Actual/360 no
ML-143 Lambda Building MLMC ORIX Yes Actual/360 no
ML-144 MicroSemi Corp. Building MLMC ORIX Yes Actual/360 no
ML-145 Office Depot - Newport News MLMC ORIX Yes Actual/360 no
ML-147 Quail Park IV MLMC ORIX Yes Actual/360 no
ML-148 Torrey Hills Corporate Centre MLMC ORIX Yes Actual/360 no
ML-151 57-13 49th Street (Maspeth) MLMC ORIX Yes Actual/360 no
ML-152 Augusta Office Building MLMC ORIX Actual/360 no
ML-154 Woodgate Apartments MLMC ORIX Yes Actual/360 no
ML-156 College Square MLMC ORIX Yes Actual/360 no
ORIX-1825 The Bayview Office Building ORIX ORIX Yes Actual/360 No
ORIX-2104 Kingsgate Shopping Center ORIX ORIX Yes Actual/360 No
ORIX-2187 Arsenal Street Shopping Center ORIX ORIX Yes Actual/360 No
ORIX-2507 Garden Villa ORIX ORIX Yes Actual/360 No
ORIX-2508 Kingsland Hills Care Center ORIX ORIX Yes Actual/360 No
ORIX-2509 New Covenant Care Center of Dinuba ORIX ORIX Yes Actual/360 No
ORIX-2596 Seguin Nursing & Rehab Center ORIX ORIX Yes Actual/360 No
ORIX-2607 Loveland Tech Center ORIX ORIX Yes Actual/360 No
ORIX-2939 Beverly Hills Medical Tower ORIX ORIX Yes Actual/360 No
ORIX-2965 Frazier-King Building ORIX ORIX Yes Actual/360 No
ORIX-3100 HKS Building ORIX ORIX Yes Actual/360 No
ORIX-3108 Centre East Shopping Center ORIX ORIX Yes Actual/360 No
ORIX-3115 The Financial Center ORIX ORIX Yes Actual/360 No
ORIX-3151 Spring Cypress Village Shopping Center ORIX ORIX Yes Actual/360 No
ORIX-3161 Woodland Park Plaza ORIX ORIX Yes Actual/360 No
ORIX-3208 Putnam Plaza ORIX ORIX Yes Actual/360 No
ORIX-3238 Southeast Crossing ORIX ORIX Yes Actual/360 No
ORIX-3256 Kingstown Plaza Shopping Center ORIX ORIX Yes Actual/360 No
ORIX-3257 Spectrum Club - Thousand Oaks ORIX ORIX Yes Actual/360 No
ORIX-3266 Northpark Plaza ORIX ORIX Yes Actual/360 No
ORIX-3290 250 Beacham Street ORIX ORIX Yes Actual/360 No
ORIX-3325 Lakeside Plaza Office Center ORIX ORIX Yes Actual/360 No
ORIX-3356 Hardaway Office Building ORIX ORIX Yes Actual/360 No
ORIX-3429 Gateway 2000 - Baton Rouge ORIX ORIX Yes Actual/360 No
ORIX-3430 Gateway 2000 - Brentwood ORIX ORIX Yes Actual/360 No
ORIX-3431 Gateway 2000 - El Paso ORIX ORIX Yes Actual/360 No
ORIX-3432 Gateway 2000 - Jackson ORIX ORIX Yes Actual/360 No
ORIX-3433 Gateway 2000 - Little Rock ORIX ORIX Yes Actual/360 No
ORIX-3434 Gateway 2000 - Newport News ORIX ORIX Yes Actual/360 No
ORIX-3435 Gateway 2000 - Oklahoma City ORIX ORIX Yes Actual/360 No
ORIX-3436 Gateway 2000 - Plano ORIX ORIX Yes Actual/360 No
ORIX-3438 Raymour & Flanigan - Southampton ORIX ORIX Yes Actual/360 No
PW-6045 Redbud Plaza PWRES ORIX Yes Actual/360 No
PW-6132 Arlington Apartments PWRES ORIX Yes Actual/360 No
PW-6376 Shadowbrook Apartments PWRES ORIX Yes Actual/360 No
PW-6437 175-181 Broadway PWRES ORIX Yes Actual/360 No
PW-6482 Fayetteville/Jacksonville Office Portfolio PWRES ORIX Yes Actual/360 No
PW-6482A Ramsey Street Office Building PWRES ORIX Yes Actual/360 No
PW-6482B Yadkin Road Building PWRES ORIX Yes Actual/360 No
PW-6482C Cliffdale Road Office Building PWRES ORIX Yes Actual/360 No
PW-6482D Henderson Drive Office Building PWRES ORIX Yes Actual/360 No
PW-7043 The Woods at Frenchman's Creek
PW-7064 Oklahoma City Industrial PWRES ORIX Yes Actual/360 No
PW-7119 Washingtonville Manor MHP PWRES ORIX Yes Actual/360 No
PW-7127 1485-1495 Davis Road PWRES ORIX Yes Actual/360 No
PW-7130 Ben White Business Park PWRES ORIX Yes Actual/360 No
PW-7141 Summercreek Apartments
PW-7146 Westbrook Towers
PW-7166 Cobblestone Apartments
PW-7170 O'Connor Place Apartments PWRES ORIX Yes Actual/360 No
PW-7312 Plaza Park MHPs PWRES ORIX Yes Actual/360 No
PW-7312A Plaza MHP PWRES ORIX Yes Actual/360 No
PW-7312B Spring Valley MHP PWRES ORIX Yes Actual/360 No
PW-7312C Blair MHP PWRES ORIX Yes Actual/360 No
PW-7395 Red Lion Apartments PWRES ORIX Yes Actual/360 No
PW-7424 St. Pete Beach Apartments PWRES ORIX Yes Actual/360 No
PW-7562 401 N. Broad Street PWRES ORIX Yes Actual/360 No
PW-7710 Peachtree Village Mobile Home Park PWRES ORIX Yes Actual/360 No
PW-7781 Sherwood Lane Apartments
PW-7789 Lexus Training Center
PW-7905 Blue Cross Blue Shield Building
PW-7958 1399 Madison Building PWRES ORIX Yes Actual/360 No
PW-8028 Tops Appliance Building PWRES ORIX Yes Actual/360 No
PW-8064 Office Max PWRES ORIX Yes Actual/360 No
PW-8202 First American Building PWRES ORIX Yes Actual/360 No
PW-8313 Crossings Apartments PWRES ORIX Yes Actual/360 No
PW-8352 Helix Building PWRES ORIX Yes Actual/360 No
PW-8703 Virginia Apartment Portfolio PWRES ORIX Yes Actual/360 No
PW-8703A Norport Apartments
PW-8703B Colonial Court
PW-8703C Lee Hall
PW-8703D River Drive Apartments
PW-7942 Bend River Mall PWRES ORIX Yes Actual/360 No
PW-6410 Gateway Plaza PWRES ORIX Yes Actual/360 No
PW-8085 Pepperwood Apartments PWRES ORIX Yes Actual/360 No
PW-8763 Sunset Hills Apartments PWRES ORIX Yes Actual/360 No
PW-7790 Smithtown Bypass PWRES ORIX Yes Actual/360 No
PW-8694 Eckerd's Building PWRES ORIX Yes Actual/360 No
PW-6232 310 Merrick Road PWRES ORIX Yes Actual/360 No
</TABLE>
<PAGE>
EXHIBIT C
FORM OF SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
Merrill Lynch Mortgage Investors, Inc. 1999-C1
Control Borrower Document Document Exception
No. Name ID Status Description
----------- ----------- ----------- ----------- -----------
C-1
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
________________, 199_
Norwest Bank Minnesota, National Association
1015 Tenth Avenue, S.E.
Minneapolis, Minnesota 55414
Attention: Customer Service - (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc. Series 1999-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Custodian under a certain Pooling and Servicing Agreement dated as of November
1, 1999 (the "Pooling and Servicing Agreement"), by and among Merrill Lynch
Mortgage Investors, Inc., as Depositor, ORIX Real Estate Capital Markets, LLC,
as Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special Servicer
and you, as Custodian, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by you with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
D-1-1
<PAGE>
___________ 1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan that are
required to be credited to the Certificate Account
pursuant to the Pooling and Servicing Agreement, have
been or will be so credited.
___________ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be (i) returned to
you or your designee within ten (10) days after resolution of the matter
specified in Item 2 or if the Mortgage Loan has been paid in full, the Mortgage
File (or such portion thereof) will be retained by us for at least [5] years.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
ORIX Real Estate Capital Markets, LLC
as Master Servicer
By:_____________________________________
Name:
Title
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
________________, 199_
Norwest Bank Minnesota, National Association
1015 Tenth Avenue, S.E.
Minneapolis, Minnesota 55414
Attention: Customer Service - (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc. Series 1999-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Custodian under a certain Pooling and Servicing Agreement dated as of November
1, 1999 (the "Pooling and Servicing Agreement"), by and among Merrill Lynch
Mortgage Investors, Inc. as depositor, ORIX Real Estate Capital Markets, LLC, as
Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special Servicer, and
you, as Custodian, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by you with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
D-2-1
<PAGE>
___________ 1. The Mortgage Loan is being foreclosed.
___________ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be (i) returned to
you or your designee within ten (10) days of resolution of the matter specified
in Item 2 or (ii) if the Mortgage Loan is being foreclosed, the Mortgage File
(or such portion thereof) will be returned when no longer required by us for
such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
ORIX Real Estate Capital Markets, LLC
as Special Servicer
By: _______________________________
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
In general, NOI is the revenue derived from the use and operation of a
Mortgaged Property less operating expenses (such as utilities, administrative
expenses, repairs and maintenance, payroll, management fees and advertising),
fixed expenses (such as insurance, real estate taxes and, if applicable, ground
lease payments), stabilized tenant improvement costs and leasing commissions and
replacement reserves. NOI does not reflect interest expenses and non-cash items
such as depreciation and amortization, and generally does not reflect capital
expenditures, but does reflect reserves for replacements.
In determining the "revenue" component of NOI for each Rental Property,
the applicable Seller or originator generally relied on the most recent
certified rent roll supplied and certified by the related borrower and, where
the actual vacancy shown thereon and the market vacancy was less than 5%,
generally assumed a minimum of 5% vacancy in determining revenue from rents,
except that in the case of certain anchored shopping centers and certain single
tenant properties, space occupied by such anchor or single tenants may have been
disregarded in performing the vacancy adjustment due to the length of the
related leases or creditworthiness of such tenants, in accordance with the
respective Seller's underwriting standards. In determining the rental revenue
for each of the Rental Properties, the applicable Seller or originator either
reviewed rental revenue shown on the certified rolling 12-month operating
statements or annualized the rental revenue and reimbursement of expenses shown
on certified rent rolls or operating statements with respect to the prior one-
to 12-month periods. Generally, in the case of hospitality properties, gross
receipts were determined on the basis of historical operating levels shown on
the borrower-supplied operating statements, but in no case in excess of rolling
12-month operating statements. Occupancy rates and average daily room rates were
within the then current market ranges. In general, any non-recurring items and
non-property related revenue were eliminated from the calculation except in the
case of residential health care facilities.
In determining the "expense" component of NOI for each Rental Property,
the Seller or originator generally relied on full-year or year-to-date financial
statements and/or rolling 12-month operating statements or financial statements
supplied by the related borrower, except that (a) if real estate tax or
insurance expense information more current than that reflected in the financial
statements was available, the newer information was used, (b) property
management fees were generally assumed to be 3% to 5% of effective gross
revenue, (c) assumptions were made with respect to stabilized reserves for
leasing commissions and tenant improvement expenses and (d) expenses were
assumed to include annual replacement reserves. See Annex A to the
E-1-1
<PAGE>
Prospectus Supplement. In addition, in some instances, the applicable Seller or
originator recharacterized as capital expenditures those items reported by
borrowers as operating expenses (thus increasing NOI) where such Seller or
originator determined appropriate.
The borrower's financial information used to determine NOI was in most
cases unaudited, and neither the Sellers nor the Depositor verified their
accuracy.
(i) References to "Cut-Off Date LTV" are references to the ratio,
expressed as a percentage of the Cut-Off Date Balance of a Mortgage Loan to the
appraised value, or with respect to one Mortgage Loan, or 9.2%, the market
value, of the related Mortgage Property as shown in the most recent third-party
appraisal or market value study thereof available to the related Seller prior to
the Cut-Off Date.
(ii) References to "Repayment LTV" are references to the ratio, expressed
as a percentage, of the expected balance of a Balloon Loan on its scheduled
maturity date or an ARD Loan on its Anticipated Repayment Date, as the case may
be (prior to the payment of any Balloon Payment or repayment of principal), to
the appraised value, or with respect to one Mortgage Loan, or 9.2%, the market
value, of the related Mortgaged Property as shown on the most recent third-party
appraisal or market value study thereof available to the related Seller prior to
the Cut-Off Date.
(iii) References to "Loan per Sq. ft., Unit, Pad, Room or Bed" are, for
each Mortgage Loan secured by a lien on (1) a retail, industrial, medical office
or office property, (2) a multifamily or self-storage property, (3) a
manufactured housing community, (4) a hospitality property or (5) a healthcare
facility, respectively, references to the Cut-Off Date balance of such Mortgage
Loan divided by the number of square feet, dwelling or storage units, pads,
guest suites or rooms, or health care facility beds, as applicable, that
comprise the related Mortgaged Property, and, for each Mortgage Loan secured by
a lien on a retail, industrial, medical office or office property, references to
the Cut-Off Date Balance of such Mortgage Loan divided by the net rentable
square footage of the related Mortgaged Property.
(iv) References to "Year Built" are references to the year that a
Mortgaged Property was originally constructed. With respect to any Mortgaged
Property which was constructed in phases, the "Year Built" refers to the year
that the first phase was originally constructed.
(v) References to "weighted averages" are references to averages weighted
on the basis of the Cut-Off Date Balances of the related Mortgage Loans or in
the event of substantial renovation or rehabilitation of a Mortgaged Property,
the year in which such renovation or rehabilitation was completed.
E-1-2
<PAGE>
(vi) References to "Mortgage Rate" are references to the interest rate on
a Mortgage Loan set forth in the related Mortgage Note on the Cut-Off Date.
(vii) References to "Initial Reserves at Closing" represent reserves
escrowed at closing for needed maintenance, repairs, replacements and
corrections or engineering and environmental issues as outlined in the
engineering and environmental reports. Such amounts typically represent 125% of
the costs of the work outlined in such reports and not completed by closing.
With respect to amounts considered de minimus and a part of ongoing maintenance,
a reserve was not established.
(viii) References to "Underwriting Reserves" represent amounts
underwritten on an annual basis to cover capital costs, as used by the
applicable Seller in determining NOI.
(ix) References to "Administrative Cost Rate" represent the sum of the
Master Servicing Fee Rate and the Trustee Fee Rate.
(x) References to "Occupancy Percentage" are, with respect to any
Mortgaged Property, references to (a) in the case of multifamily properties and
manufactured housing communities, the percentage of units or pads rented, (b) in
the case of medical office, office, industrial and retail properties, the
percentage of the net rentable square footage rented, (c) in the case of
self-storage facilities, either the percentage of the net rentable square
footage rented or the percentage of units rented (depending on borrower
reporting) and (d) in the case of congregate care facilities, the percentage of
beds rented.
(xi) References to "Stated Remaining Term" are references to the remaining
term to maturity for each Mortgage Loan (or the remaining number of months to
the Anticipated Repayment Date with respect to each ARD Loan) as the Cut-Off
Date.
The sum of any column of any of the following tables may not equal the indicated
total due to rounding.
The DSCR, Cut-Off Date LTV and the Repayment LTV calculations for the Mortgage
Loans are exclusive of Credit Lease Loans because the Credit Lease Loans were
originated primarily on the basis of the creditworthiness of the related Credit
Lease Tenants or Guarantors.
E-1-3
<PAGE>
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
________________, 199_
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1999-C1, Class [ ] (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November 4, 1999 (the "Closing Date") of
$_____________] [evidencing a __% percentage interest in the Class to which it
belongs]. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1999,
among Merrill Lynch Mortgage Investors, Inc., as depositor, ORIX Real Estate
Capital Markets, LLC, as master servicer, ORIX Real Estate Capital Markets, LLC
as special servicer and Norwest Bank Minnesota, National Association, as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accepted a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof)
F-1-1
<PAGE>
would constitute a distribution of any Certificate under the Securities
Act of 1933 (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Certificate pursuant to the Securities Act or any state securities laws.
Very truly yours,
______________________________
(Transferor)
By:___________________________
Name:_________________________
Title:________________________
F-1-2
<PAGE>
EXHIBIT F-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
_____________, 199_
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1,
Class [ ] (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November 4, 1999 (the "Closing Date") of
$_____________] [evidencing a __% percentage interest in the Class to which it
belongs]. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1999,
among Merrill Lynch Mortgage Investors, Inc., as depositor, ORIX Real Estate
Capital Markets, LLC, as master servicer, ORIX Real Estate Capital Markets, LLC,
as special servicer and Norwest Bank Minnesota, National Association, as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933
(the "Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the sale to it is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificate for its own account or
for the account of a qualified institutional buyer, and understands that
such Certificate may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
F-2-1
<PAGE>
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling
and Servicing Agreement, and (e) any credit enhancement mechanism
associated with the Certificates, and (f) all related matters, that it has
requested.
Very truly yours,
______________________________
(Transferee)
By:___________________________
Name:_________________________
Title:________________________
F-2-2
<PAGE>
ANNEX 1 TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and Norwest Bank Minnesota, National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A") because (i)
the Transferee owned and/or invested on a discretionary basis $ in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) [Transferee must own and/or invest on a discretionary basis at
least $100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on, a discretionary basis at least
$10,000,000 in securities.] and (ii) the Transferee satisfies the criteria in
the category marked below.
o Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), business
trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
o Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
F-2-3
<PAGE>
o Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
o Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
o Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
o State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
o ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
o Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
o Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)_____________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the
F-2-4
<PAGE>
Transferee, (ii) securities that are part of an unsold allotment to or
subscription by the Transferee, if the Transferee is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any of the
securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing
the Transferred Certificate only ___ ___
for the Transferee's own account? Yes No
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such
F-2-5
<PAGE>
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Print Name of Transferee
By:___________________________
Name:_________________________
Title:________________________
F-2-6
<PAGE>
ANNEX 2 TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and Norwest Bank Minnesota, National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
o The Transferee owned and/or invested on a discretionary basis $ in
securities (other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
o The Transferee is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
F-2-7
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing
the Transferred Certificate only ___ ___
for the Transferee's own account? Yes No
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
F-2-8
<PAGE>
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
_______________________________________
Print Name of Transferee or Adviser
_______________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
F-2-9
<PAGE>
EXHIBIT F-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
___________ ____, 199_
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1,
Class [_________________] (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ by (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November 4, 1999 (the "Closing Date") of
$_____________] [evidencing a ___% percentage interest in the Class to which it
belongs]. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1999,
among Merrill Lynch Mortgage Investors, Inc., as depositor (the "Depositor"),
ORIX Real Estate Capital Markets, LLC, as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer and Norwest Bank Minnesota, National
Association, as trustee. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Certificates and (c)
the Certificates may not be resold or transferred unless they are (i) registered
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or
F-3-1
<PAGE>
(ii) sold or transferred in transactions which are exempt from such registration
and qualification and the Certificate Registrar has received either (A)
certifications from both the transferor and the transferee (substantially in the
forms attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption,
together with copies of the certification(s) from the Transferor and/or
Transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the Transferred
Certificate will bear legends substantially to the following effect:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
- - AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities
F-3-2
<PAGE>
Act, would render the disposition of any Certificate a violation of Section 5 of
the Securities Act or any state securities law or would require registration or
qualification of any Certificate pursuant thereto. The Transferee will not act,
nor has it authorized or will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to any Certificate.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Certificates and distributions thereon, (c) the
Pooling and Servicing Agreement, and (d) all related matters, that it has
requested.
6. The Transferee is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Certificates; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
Very truly yours,
______________________________
(Transferee)
By:___________________________
Name:_________________________
Title:________________________
F-3-3
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE LETTER (RELATING TO ERISA)
___________ ______, 199_
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series
1999-C1, Class [ ] (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") (having principal balances as of November 4, 1999 (the "Closing
Date") of $_____________ evidencing a __% interest in the Classes to which they
belong]. The Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as of November 1, 1999 (the "Pooling and Servicing Agreement"),
among Merrill Lynch Mortgage Investors, Inc., as depositor, ORIX Real Estate
Capital Markets, LLC, as master servicer, ORIX Real Estate Capital Markets, LLC,
as special servicer and Norwest Bank Minnesota, National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you that:
Either: (1) the Transferee is not an employee benefit plan within
the meaning of section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (a "Plan"), or a plan within the meaning of section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (also,
a "Plan"), and the Transferee is not directly or indirectly purchasing the
Transferred Certificate on behalf of, as investment manager of, as named
fiduciary of, as trustee of, or with assets of a Plan (including any insurance
company using assets in its general or separate account that may constitute
assets of a Plan); or (2) the Transferee's purchase of the Transferred
Certificate will not result in a prohibited transaction under section 406 of
ERISA or section 4975 of the Code or subject the Master Servicer, the Special
Servicer or the Trustee to any obligation in addition to those undertaken in the
Pooling and Servicing Agreement.
G-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
______________________________
[Name of Transferee]
By:___________________________
Name:_________________________
Title:________________________
G-1-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING CLASS R-I, R-II AND R-III CERTIFICATES
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, and represents
and warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"),
a corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the Merrill Lynch
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1999-C1, Class [R-I, R-II, R-III] evidencing a ___% Percentage Interest
(the "Class [R-I, R-II, R-III] Certificates"). Capitalized terms used but
not defined herein have the meanings assigned to such terms in the Pooling
and Servicing Agreement dated as of November 1, 1999, among Merrill Lynch
Mortgage Investors, Inc., as Depositor, ORIX Real Estate Capital Markets,
LLC, as Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
_____ _, 199_ and (ii) is acquiring the Class [R-I, R-II, R-III]
Certificates for its own account or for the account of another Owner from
which it has received an affidavit in substantially the same form as this
affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a Non-United States Person. For this
purpose, a "disqualified organization" means any of the following: (i) the
United States, any State or political subdivision thereof, any possession
of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except of the FHLMC, a majority of
its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other
than certain farmers' cooperatives described in Section 521 of the
Internal Revenue Code of 1986, as amended (the "Code")) which is exempt
from the tax imposed by Chapter 1 of the Code (unless such organization is
subject to the tax imposed by Section 511 of the Code on
H-1-1
<PAGE>
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any
other Person so designated by the Trustee based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class [R-I, R-II, R-III]
Certificate by such Person may cause the Trust Fund or any Person having
an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class [R-I, R-II, R-III] Certificate to such Person. The
terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate or trust whose income is includible in
gross income for United States federal income tax purposes regardless of
its source, or a trust if a court within the U.S. is able to exercise
primary supervision over the administration of the trust and one or more
U.S. fiduciaries have the authority to control all substantial decisions
of the trust.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I, R-II, R-III] Certificates to disqualified
organizations under the Code that applies to all transfers of the Class
[R-I, R-II, R-III] Certificates; (ii) that such tax would be on the
transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a disqualified organization
transferee, on the agent; (iii) that the person otherwise liable for the
tax shall be relieved of liability for the tax if the transferee furnishes
to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have
actual knowledge that the affidavit is false; and (iv) that the Class
[R-I, R-II, R-III] Certificates may be "noneconomic residual interests"
within the meaning of Treasury regulation section 1.860E-I(c)(2) and that
the transferor of a "noneconomic residual interest" will remain liable for
any taxes due with respect to the income on such residual interest, unless
no significant purpose of the transfer is to enable the transferor to
impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I, R-II, R-III] Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted
Transferee is the record
H-1-2
<PAGE>
holder of an interest in such entity. For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.
5. That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class [R-I, R-II, R-III] Certificate unless
the transferee, or the transferee's agent, delivers to the Trustee, among
other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I, R-II,
R-III] Certificates will only be owned, directly or indirectly, by
Permitted Transferees.
7. That the Owner's taxpayer identification number is _____________.
8. That the Owner has reviewed the restrictions set forth on the
face of the Class [R-I, R-II, R-III] Certificates and the provisions of
Section 5.02 of the Pooling and Servicing Agreement under which the Class
[R-I, R-II, R-III] Certificates were issued (and, in particular, the Owner
is aware that such Section authorizes the Trustee to deliver payments to a
person other than the Owner and negotiate a mandatory sale by the Trustee
in the event that the Owner holds such Certificate in violation of Section
5.02); and that the Owner expressly agrees to be bound by and to comply
with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class
[R-I, R-II, R-III] Certificates in order to impede the assessment or
collection of any tax.
10. That the Owner anticipates that it will, so long as it holds any
of the Class [R-I, R-II, R-III] Certificates, have sufficient assets to
pay any taxes owed by the holder of such Class [R-I, R-II, R-III]
Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds
any of the Class [R-I, R-II, R-III] Certificates.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States
H-1-3
<PAGE>
taxes owed by it so long as any of the Certificates remain outstanding. In
this regard, the Owner hereby represents to and for the benefit of the
Person from whom it acquired the Class [R-I, R-II, R-III] Certificates
that the Owner intends to pay taxes associated with holding the Class
[R-I, R-II, R-III] Certificates as they become due, fully understanding
that it may incur tax liabilities in excess of any cash flows generated by
the Class [R-I, R-II, R-III] Certificates.
13. That the Owner is not acquiring the Class [R-I, R-II, R-III]
Certificates with the intent to transfer any of the Class [R-I, R-II,
R-III] Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Class [R-I, R-II,
R-III] Certificates, or that may become insolvent or subject to a
bankruptcy proceeding, for so long as the Class [R-I, R-II, R-III]
Certificates remain outstanding.
14. That Owner will, in connection with any transfer that it makes
of the Class [R-I, R-II, R-III] Certificates, obtain from its transferee
the representations required by Section 5.02(d) of the Pooling and
Servicing Agreement under which the Class [R-I, R-II, R-III] Certificates
were issued and will not consummate any such transfer if it knows, or
knows facts that should lead it to believe, that any such representations
are false.
15. That Owner will, in connection with any transfer that it makes
of any Class [R-I, R-II, R-III] Certificate, deliver to the Certificate
Registrar an affidavit, which represents and warrants that it is not
transferring such Class [R-I, R-II, R-III] Certificate to impede the
assessment or collection of any tax and that it has no actual knowledge
that the proposed transferee: (i) has insufficient assets to pay any taxes
owed by such transferee as holder of such Class [R-I, R-II, R-III]
Certificate; (ii) may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II, R-III] Certificates
remain outstanding; and (iii) is not a "Permitted Transferee".
H-1-4
<PAGE>
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its [Title of Officer] and Authorized Signatory, attested by its
[Assistant] Secretary, this ____ day of _____, 199_.
[NAME OF OWNER]
By:________________________________
[Name of Officer]
[Title of Officer]
____________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of ________ 199_.
_____________________________
NOTARY PUBLIC
COUNTY OF ___________________
STATE OF ____________________
My Commission expires the
____ day of __________, 19__.
H-1-5
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING CLASS R-I, R-II AND R-III CERTIFICATES
______________ ____, 199_
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1, Class [R-I,
R-II, R-III], evidencing a ____% percentage interest in the Class to
which they belong
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________________________ (the "Transferor") to
______________________________________________ (the "Transferees") of the
captioned Class [R-I, R-II, R-III] Certificates (the "Class [R-I, R-II, R-III]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1999, among
Merrill Lynch Mortgage Investors, Inc., as depositor, ORIX Real Estate Capital
Markets, LLC, as master servicer, ORIX Real Estate Capital Markets, LLC, as
special servicer, and Norwest Bank Minnesota, National Association, as trustee.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby represents
and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Class [R-I, R-II, R-III] Certificates by the Transferor to the Transferee
is or will be to impede the assessment or collection of any tax.
H-2-1
<PAGE>
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit H-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulation Section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Class [R-I, R-II, R-III] Certificates
may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes
associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
______________________________
(Transferor)
By:___________________________
Name:_________________________
Title:________________________
H-2-2
<PAGE>
Exhibit I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
____________ ____, 199_
Duff & Phelps Credit Rating Co.
17 State Street, 12th Fl.
New York, New York 10004
Standard & Poor's Ratings Agency
55 Water Street
New York, New York 10041
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement dated as of November 1, 1999 relating to Merrill Lynch
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series 1999-C1
(the "Agreement"). Any term with initial capital letters not otherwise defined
in this notice has the meaning given such term in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________ as Special Servicer will become
final if certain conditions are met and if neither of you deliver to Norwest
Bank Minnesota, National Association, the trustee under the Agreement (the
"Trustee"), within 45 days after the date of the delivery of this notice to you,
a written notice stating that if the person designated to become the Special
Servicer were to serve as the Special Servicer, then the rating or ratings of
one or more Classes of the Certificates would be qualified, downgraded or
withdrawn.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee.
Very truly yours,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By: ______________________________
Title: ___________________________
I-1-2
<PAGE>
Receipt acknowledged:
Standard & Poor's Ratings Agency Duff & Phelps Credit Rating Co.
By:_________________ By:_________________
Title:______________ Title:______________
Date:_______________ Date:_______________
I-1-3
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
__________ ____, 199_
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as
of November 1, 1999 relating to Merrill Lynch Mortgage Investors, Inc. Mortgage
Pass-Through Certificates, Series 1999-C1 (the "Agreement"), the undersigned
hereby agrees with all the other parties to the Agreement that the undersigned
shall serve as Special Servicer under, and as defined in, the Agreement. The
undersigned hereby acknowledges that, as of the date hereof, it is and shall be
a party to the Agreement and bound thereby to the full extent indicated therein
in the capacity of Special Servicer. The undersigned hereby makes, as of the
date hereof, the representations and warranties set forth in Section 3.24 as if
it were the Special Servicer thereunder.
______________________________
By:___________________________
Name:_________________________
Title:________________________
I-2-1
<PAGE>
EXHIBIT J
Form of Distribution Date Statement
J-1
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
================================================================================
STATEMENT SECTIONS PAGE(s)
- ------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7 - 9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14 - 15
Modified Loan Detail 16
Liquidated Loan Detail 17
================================================================================
<TABLE>
<CAPTION>
Underwriter Underwriter Servicer Special Servicer
=================================== =========================== ============================ =====================================
<S> <C> <C> <C>
Merrill Lynch, Pierce, PaineWebber Incorporated ORIX Real Estate Capital ORIX Real Estate Capital Markets, LLC
Fenner & Smith Incorporated 1285 Avenue of the Americas Market, LLC 1717 Main Street, 12th Floor
World Financial Center, North Tower New York, NY 10019 1717 Main Street, 12th Floor Dallas, TX 75201
25 Vesey Street Dallas, TX 75201
New York, NY 10281 Contact: Paul G. Smyth Contact: Paul G. Smyth
Phone Number: (214) 237-2010 Phone Number: (214) 237-2010
=================================== =========================== ============================ =====================================
</TABLE>
This report has been compiled from information provided to Norwest by
various third parties, which may include the Servicer, Master Servicer,
Special Servicer and others. Norwest has not independently confirmed the
accuracy of information received from these third parties and assumes no
duty to do so. Norwest expressly disclaims any responsibility for the
accuracy or completeness of information furnished by third parties.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 1 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Certificate Distribution Detail
<TABLE>
<CAPTION>
==================================================================================================================================
Realized
Loss/
Additional
Trust Total Current
Pass-Through Original Beginning Principal Interest Prepayment Fund Distri- Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Penalties Expenses bution Balance Level(1)
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
LR 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
==================================================================================================================================
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
==================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
=====================================================================================================
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalties Distribution Amount
=====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
IO 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
=====================================================================================================
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of
all classes less (B) the sum of (i) the ending certificate balance of the
designated class and (ii) the ending certificate balance of all classes
which are not subordinate to the designated class and dividing the result by
(A).
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 2 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Certificate Factor Detail
<TABLE>
<CAPTION>
===============================================================================================================
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Penalties Fund Expenses Balance
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
LR 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
===============================================================================================================
</TABLE>
<TABLE>
<CAPTION>
================================================================================
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Penalties Amount
================================================================================
<S> <C> <C> <C> <C> <C>
IO 0.00000000 0.00000000 0.00000000 0.00000000
================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 3 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Reconciliation Detail
<TABLE>
<CAPTION>
Advance Summary Master Servicing Fee Summary
<S> <C> <C> <C>
P & I Advances Outstanding 0.00 Current Period Accrued Master Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Master Servicing Fees on Delinquent Payments 0.00
Less Reductions to Master Servicing Fees 0.00
Reimbursement for Interest on P&I 0.00 Plus Master Servicing Fees for Delinquent Payments Received 0.00
Advance paid from general collections Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Servicing Fees Collected 0.00
Reimbursements for Interest on Servicing 0.00
Advances paid from general collections
</TABLE>
Certificate Interest Reconciliation
<TABLE>
<CAPTION>
==============================================================================================================
Net
Aggregate Distributable Remaining Unpaid
Accrued Prepayment Distributable Certificate Additional Distributable
Certificate Interest Certificate Interest Trust Fund Interest Certificate
Class Interest Shortfall Interest Adjustment Expenses Distribution Interest
==============================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
A-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
IO 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00 0.00 0.00 0.00
==============================================================================================================
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
==============================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 4 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Other Required Information
- --------------------------------------------------------------------------------
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Stand-by Fee 0.00
Aggregate Trust Fund Expenses 0.00
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
- --------------------------------------------------------------------------------
Appraisal Reduction Amount
================================================================================
Appraisal Date Appraisal
Loan Reduction Reduction
Number Effected Effected
================================================================================
None
================================================================================
Total
================================================================================
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 5 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Ratings Detail
<TABLE>
<CAPTION>
====================================================================================================
Original Ratings Current Ratings (1)
----------------------------------- -----------------------------------
Class CUSIP DCR FITCH MOODY'S S&P DCR FITCH MOODY'S S&P
----- ----- --- ----- ------- --- --- ----- -------- ---
====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1
A-2
IO
B
C
D
E
F
G
H
J
K
====================================================================================================
</TABLE>
NR - Designates that the class was not rated by the above agency at the
time of original issuance.
X - Designates that the above rating agency did not rate any classes in
this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any
particular rating agency, no request has been made subsequent to issuance to
obtain rating information, if any, from such rating agency. The current
ratings were obtained directly from the applicable rating agency within 30
days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to
obtain current ratings directly from the rating agencies.
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
(312) 368-3100
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
(212) 908-0500
Moody's Investors Service
99 Church Street
New York, New York 10007
(212) 553-0300
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
(212) 208-8000
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 6 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Scheduled Balance
<TABLE>
<CAPTION>
========================================================================================
Scheduled # of Scheduled % of Weighted
Balance Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
========================================================================================
<S> <C> <C> <C> <C> <C> <C>
========================================================================================
Totals
========================================================================================
</TABLE>
State (3)
<TABLE>
<CAPTION>
========================================================================================
# of Scheduled % of Weighted
State Props. Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
========================================================================================
<S> <C> <C> <C> <C> <C> <C>
========================================================================================
Totals
========================================================================================
</TABLE>
See footnotes on last page of this section.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 7 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
<TABLE>
<CAPTION>
===============================================================================
Debt Servcice # of Scheduled % of Weighted
Coverage Ratio Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
Property Type(3)
<TABLE>
<CAPTION>
===============================================================================
Property # of Scheduled % of Weighted
Type Props. Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
Note Rate
<TABLE>
<CAPTION>
===============================================================================
Note # of Scheduled % of Weighted
Rate Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
Seasoning
<TABLE>
<CAPTION>
===============================================================================
# of Scheduled % of Weighted
Seasoning Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
See footnotes on last page of this section.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Anticipated Remaining Term (ARD and Balloon Loans)
<TABLE>
<CAPTION>
===============================================================================
Anticipated # of Scheduled % of Weighted
Remaining Term(2) Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
Remaining Stated Term (Fully Amortizing Loans)
<TABLE>
<CAPTION>
===============================================================================
Remaining Stated # of Scheduled % of Weighted
Term Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
Remaining Amortization Term (ARD and Balloon Loans)
<TABLE>
<CAPTION>
===============================================================================
Remaining # of Scheduled % of Weighted
Amortization Term Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
Age of Most Recent NOI
<TABLE>
<CAPTION>
===============================================================================
Age of Most # of Scheduled % of Weighted
Recent NOI Loans Balance Agg. Bal. WAM(2) WAC Avg DSCR(1)
===============================================================================
<S> <C> <C> <C> <C> <C> <C>
===============================================================================
Totals
===============================================================================
</TABLE>
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided
by the Servicer, information from the offering document is used. The Trustee
makes no representations as to the accuracy of the data provided by the borrower
for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CMSA
Standard Information Package.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Mortgage Loan Detail
<TABLE>
<CAPTION>
===================================================================================================================================
Anticipated Neg.
Loan Property Interest Principal Gross Repayment Maturity Amort
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N)
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===================================================================================================================================
Totals
===================================================================================================================================
<CAPTION>
=====================================================================================================
Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number Balance Balance Date Date Amount (2) (3)
=====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=====================================================================================================
Totals
=====================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Property Type Code (2) Resolution Strategy Code (3) Modification Code
---------------------- --------------------------- --------------------
<S> <C> <C> <C> <C>
MF - Multi-Family OF - Office 1 - Modification 8 - Resolved 1 - Maturity Date Extension
RT - Retail MU - Mixed Use 2 - Foreclosure 9 - Pending Return 2 - Amortization Change
HC - Health Care LO - Lodging 3 - Bankruptcy to Master Servicer 3 - Principal Write-Off
IN - Industrial SS - Self Storage 4 - Extension 10 - Deed in Lieu Of 4 - Combination
WH - Warehouse OT - Other 5 - Note Sale Foreclosure
MH - Mobile Home Park 6 - DPO 11 - Full Payoff
7 - REO 12 - Reps and Warranties
13 - Other or TBD
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Principal Prepayment Detail
<TABLE>
<CAPTION>
=============================================================================================================================
Principal Prepayment Amount Prepayment Penalties
--------------------------- --------------------
Loan Number Offering Document
Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
=============================================================================================================================
<S> <C> <C> <C> <C> <C>
=============================================================================================================================
Totals
=============================================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Historical Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Delinquencies Prepayments Rate and Maturities
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff Next Weighted Avg. WAM
Date # Balance # Balance # Balance # Balance # Balance # Balance # Amount # Amount Coupon Remit
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
</TABLE>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Delinquency Loan Detail
<TABLE>
<CAPTION>
=================================================================================================================================
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances** Loan (1) Code (2) Transfer Date Date
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
=================================================================================================================================
Totals
=================================================================================================================================
<CAPTION>
=================================================================
Current Outstanding
Servicing Servicing REO
Loan Number Advances Advances Bankruptcy Date Date
=================================================================
<S> <C> <C> <C> <C>
=================================================================
Totals
=================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Status of Mortgage Loan (2) Resolution Strategy Code
--------------------------- ----------------------------
<S> <C> <C> <C> <C>
1 - Modification 6 - DPO 10 - Deed In Lieu Of 1 - Modification 7 - REO
2 - Foreclosure 7 - REO Foreclosure 2 - Foreclosure 8 - Resolved
3 - Bankruptcy 8 - Resolved 11 - Full Payoff 3 - Bankruptcy 9 - Pending Return
4 - Extension 9 - Pending Return 12 - Reps and Warranties 4 - Extension to Master Servicer
5 - Note Sale to Master Servicer 13 - Other or TBD 5 - Note Sale 10 - Deed in Lieu Of
6 - DPO Foreclosure
</TABLE>
** Outstanding P & I Advances include the current period advance
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
<TABLE>
<CAPTION>
=================================================================================================================================
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
=================================================================================================================================
<CAPTION>
Net Remaining
Distribution Actual Operating NOI Note Maturity Amortization
Date Balance Income Date DSCR Date Date Term
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- ----------------------
<S> <C> <C> <C>
1 - Modification 7 - REO MF - Multi-Family OF - Office
2 - Foreclosure 8 - Resolved RT - Retail MU - Mixed Use
3 - Bankruptcy 9 - Pending Return HC - Health Care LO - Lodging
4 - Extension to Master Servicer IN - Industrial SS - Self Storage
5 - Note Sale 10 - Deed in Lieu Of WH - Warehouse OT - Other
6 - DPO Foreclosure MH - Mobile Home Park
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
<TABLE>
<CAPTION>
===================================================================================================================================
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Resolution Strategy Code
----------------------------
<S> <C>
1 - Modification 8 - Resolved
2 - Foreclosure 9 - Pending Return
3 - Bankruptcy to Master Servicer
4 - Extension 10 - Deed in Lieu Of
5 - Note Sale Foreclosure
6 - DPO 11 - Full Payoff
7 - REO 12 - Reps and Warranties
13 - Other or TBD
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Modified Loan Detail
<TABLE>
<CAPTION>
=====================================================================================================
Offering
Loan Document Pre-Modification Modification Date Modification Description
Number Cross-Reference Balance
=====================================================================================================
<S> <C> <C> <C> <C>
=====================================================================================================
Total
=====================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
<TABLE>
<S> <C> <C>
------------------------------------------
[LOGO] Merrill Lynch Mortgage Investors, Inc. For Additional Information, please contact
Norwest Bank Minnesota, N.A. Mortgage Pass-Through Certificates CTSLink Customer Service
Corporate Trust Services Series 1999-C1 (301) 816-6600
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 12/16/1999
Record Date: 11/30/1999
</TABLE>
- --------------------------------------------------------------------------------
Liquidated Loan Detail
<TABLE>
<CAPTION>
=======================================================================================================================
Final Recovery Offering Gross Proceeds
Loan Determination Document Appraisal Appraisal Actual Gross as a % of
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance
=======================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=======================================================================================================================
Current Total
=======================================================================================================================
Cumulative Total
=======================================================================================================================
<CAPTION>
=========================================================================================
Aggregate Net Net Proceeds Repurchased
Loan Liquidation Liquidation as a % of Realized by Seller
Number Expenses* Proceeds Actual Balance Loss (Y/N)
=========================================================================================
<S> <C> <C> <C> <C> <C>
=========================================================================================
Current Total
=========================================================================================
Cumulative Total
=========================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT K
Form of Schedule of Certificateholders
Initial
Certificate
Class Principal Balance Name of Holder Address
----- ----------------- -------------- -------
K-1
<PAGE>
Exhibit L
Form of CMSA Property File Report
L-1
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Field
-----
Field Name Number Type Format Description
- ---------- ------ ---- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Id 2 AN 00000000012345 Unique Indentification Number Assigned To Each
Collateral Item In A Pool
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Loan ID 3 AN 123 Unique Indentification Number Assigned To Each
Collateral Item In The Prospectus
- ------------------------------------------------------------------------------------------------------------------------------------
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Cross-Collateralized Loan Grouping 6 Numeric 9(3) All Loans With The Same Numeric Value Are Crossed
- ------------------------------------------------------------------------------------------------------------------------------------
Property Name 7 AN Text
- ------------------------------------------------------------------------------------------------------------------------------------
Property Address 8 AN Text
- ------------------------------------------------------------------------------------------------------------------------------------
Property City 9 AN Text
- ------------------------------------------------------------------------------------------------------------------------------------
Property State 10 AN Text
- ------------------------------------------------------------------------------------------------------------------------------------
Property Zip Code 11 AN 30303
- ------------------------------------------------------------------------------------------------------------------------------------
Property County 12 AN Text
- ------------------------------------------------------------------------------------------------------------------------------------
Property Type Code 13 AN MF
- ------------------------------------------------------------------------------------------------------------------------------------
Year Built 14 AN YYYY
- ------------------------------------------------------------------------------------------------------------------------------------
Year Last Renovated 15 AN YYYY
- ------------------------------------------------------------------------------------------------------------------------------------
Net Square Feet At Securitization 16 Numeric 25000 RT, IN, WH, OF, MU, OT - SF
- ------------------------------------------------------------------------------------------------------------------------------------
# Of Units/Beds/Rooms At Securitization 17 Numeric 75 MF, MHP, LO, HC, SS - Units
- ------------------------------------------------------------------------------------------------------------------------------------
Property Status 18 AN 1 1=FCL, 2-REO, 3=Defeased, 4=partial Releases,
5=Released, 6=Same as at Securitization
- ------------------------------------------------------------------------------------------------------------------------------------
Allocated Percentage of Loan at Securitization 19 Numeric 0.75 Issuer to allocate loan % attributable to property
for multi-property loans
- ------------------------------------------------------------------------------------------------------------------------------------
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer
- ------------------------------------------------------------------------------------------------------------------------------------
Current Allocated Loan Amount 21 Numeric 5900900 Calculation based on Current Allocated Loan Amount
and Current SPB for associated loan
- ------------------------------------------------------------------------------------------------------------------------------------
Ground Lease (Y/N) 22 AN N Either Y=Yes, S=Subordinate, N=No ground lease
- ------------------------------------------------------------------------------------------------------------------------------------
Other Escrow / Reserve Balances 23 Numeric 25000
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 24 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraised Value 25 Numeric 10000000
- ------------------------------------------------------------------------------------------------------------------------------------
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD Could be different dates for different properties
if foreclosing
- ------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date 27 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
REO Date 28 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Occupancy % 29 Numeric 0.75 Map to Most Recent Fiscal YTD Physical Occupancy in
CSSA, multiply times Current Allocated %
- ------------------------------------------------------------------------------------------------------------------------------------
Occupancy Date 30 Numeric YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
- ------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
- ------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
- ------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
- ------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
- ------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
- ------------------------------------------------------------------------------------------------------------------------------------
Largest Tenant (Tenant Name) 37 AN Text For Office, WH, Retail, Industrial, *Only if
disclosed in the offering document
- ------------------------------------------------------------------------------------------------------------------------------------
Square Feet of Largest Tenant 38 Numeric 15000
- ------------------------------------------------------------------------------------------------------------------------------------
2nd Largest Tenant (Tenant Name) 39 AN Text For Office, WH, Retail, Industrial, *Only if
disclosed in the offering document
- ------------------------------------------------------------------------------------------------------------------------------------
Square Feet of 2nd Largest Tenant 40 Numeric 15000.000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
3rd Largest Tenant (Tenant Name) 41 AN Text
- ------------------------------------------------------------------------------------------------------------------------------------
Square Feet of 3rd Largest Tenant 42 Numeric 15000
- ------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year End Month 43 Numeric 12 Needed to indicate month ending for borrower's
Fiscal Year
- ------------------------------------------------------------------------------------------------------------------------------------
Securitization Financials As Of Date 44 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Revenue At Securitization 45 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Operating Expenses At Securitization 46 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
NOI At Securitization 47 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
DSCR At Securitization 48 Numeric 1.5 Multiply times the Allocated % at Securitization
- ------------------------------------------------------------------------------------------------------------------------------------
Appraisal Value At Securitization 49 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Appraisal Date At Securitization 50 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Physical Occupancy At Securitization 51 Numeric Multiply times the Allocated % at Securitization
- ------------------------------------------------------------------------------------------------------------------------------------
Date of Last Inspection 52 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding FY Financial As of Date 53 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Expenses 55 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 56 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Service Amt 57 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR 58 Numeric 1.3
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9
- ------------------------------------------------------------------------------------------------------------------------------------
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Revenue 61 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Expenses 62 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY NOI 63 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Debt Service 64 Numeric 1000000.00
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY DSCR 65 Numeric 1.3
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Physical Occupancy 66 Numeric 0.90
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit M
Form of Comparative Financial Status Report
M-1
<PAGE>
EXHIBIT
Comparative Financial Status Report
<TABLE>
<CAPTION>
------------------------------------------------
------------------------------------------------
Original Underwriting Information
-----------------------------------------
-----------------------------------------
Last Ending
Property Scheduled Paid Annual Financial
Prospectus Inspection Principal Thru Debt Info % Total $
Number City State Date Balance Date Service as of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Grand Total Grand Total
<CAPTION>
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Prior Full Year Operating Information ** ANNEX ECurrent Annual Operating Information
As of Y-E YYYY Normalized As of Y-E YYYY Normalized
Financial Financial
Prospectus Info as of % Total $ Info as of % Total $
Number Date Occ Revenue NOI DSCR Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Normalized YTD Financial Information Net Change
Month Reported Current & [ ]
[FS] [FS] %
Prospectus Start End % Total $ % Total
Number Date Date Occ Revenue NOI DSCR Occ Rev DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
- -----------------------------------------
Financial Information:
- -----------------------------------------
- -----------------------------------------
Current Full Year:
- -----------------------------------------
Current Full Yr. received with DSC < 1:
- -----------------------------------------
Prior Full Year:
- -----------------------------------------
Prior Full Yr. received with DSC < 1:
- -----------------------------------------
<TABLE>
<CAPTION>
Resolved Required
Loans Balance Balance
% $ % % $ %
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
count count/total count Balance balance/total balance
- -------------------------------------------------------------------------------------------------------------------------
count count/total count Balance balance/total balance
- -------------------------------------------------------------------------------------------------------------------------
count count/total count Balance balance/total balance
- -------------------------------------------------------------------------------------------------------------------------
count count/total count Balance balance/total balance
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
* 2nd Preceding Annual Operating Information
** Preceding Annual Operating
<PAGE>
Exhibit N
Form of REO Status Report
N-1
<PAGE>
EXHIBIT
REO STATUS REPORT
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Other
Paid Ending Total P&I Total Advances
Prospectus Property Property Sq Ft or thru Scheduled Advances to Expenses to (Taxes & Total
ID Name Type City State Units Date Balance Date Date Insurance) Exposure
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ------------------------------------------------------------------------------------
LTM Cap Rate
Prospectus Current Maturity NOI LTM Assigned Valuation/
ID Monthly P&I Date Date LTM NOI DSCR *** Appraisal Date
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
*** How to determine the cap rate is agreed upon by Underwriter and Servicers -
to be provided by a third party
<PAGE>
EXHIBIT
REO STATUS REPORT
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Value Total Special
using Appraisal/ Loss Using 92% Appraisal Servicing REO
Prospectus Property Property NOI & BPO or Appraisal or Estimated Reduction Transfer Acquisition
ID Name Type City Cap Rate Internal Value BPO Recovery % Realized Date Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------
Pending
Prospectus Resolution
ID Date Comments
- --------------------------------------------------------
<S> <C> <C>
</TABLE>
<PAGE>
Exhibit O
Form of Watch List
O-1
<PAGE>
EXHIBIT
SERVICER WATCH LIST
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Ending
Prospectus Property Property Scheduled Paid thru Maturity Comment/Reason on Watch
ID Name Type City State Balance Date Date LTM DSCR List
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Exhibit P
Form of Delinquent Loan Status Report
P-1
<PAGE>
EXHIBIT
Delinquent Loan Status Report
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Total Other
Ending 0/S Total Advances
Prospectus Property Property Sq Ft or Paid to Scheduled P&I O/S (Taxes &
ID Name Type City State Units Date Balance Advances Expenses Insurance)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ---------------------------------------------------------------------------------------
Current Current LTM Cap Rate
Prospectus Total Monthly Interest Mat. NOI LTM LTM Assigned
ID Exposure P&I Rate Date Date NOI DSCR ***
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
90 + Days Delinquent
60 Days Delinquent
30 Days Delinquent
Current & at Special Servicer
Foreclosure
*** How to determine cap rate is agreed upon by Underwriter and Servicers
- to be provided by a third party
<PAGE>
EXHIBIT
Delinquent Loan Status Report
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Value Appraisal, Loss Total
using NOI Valuation/ BPO, or Using 92% Estimated Appraisal
Prospectus Property Property & Cap Appraisal Internal Appraisal Recovery Reduction
ID Name Type City State Rate Date Value or BPO % Realised
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- -----------------------------------------------------------------------------------
Prospectus Transfer Resolution FCL Start Expected FCL Workout
ID Date Date Date Sale Date Strategy Comments
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
90 + Days Delinquent
60 Days Delinquent
30 Days Delinquent
Current & at Special Servicer
Foreclosure
<PAGE>
Exhibit Q
Form of Historical Loan Modification Report
Q-1
<PAGE>
EXHIBIT
HISTORICAL LOAN MODIFICATION REPORT
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Balance # Months
Modification Modification when sent to Balance at the For
Prospectus or Ext Effective Special Effective Date of Old New Rate Old New Old
ID City State Flag Date Servicer Modification Rate Rate Change P&I P&I Maturity
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total for All Loans:
Total for Loans in Current Month
# of Loans $ Balance
Modifications
Maturity Date Extentions:
Total
<PAGE>
EXHIBIT
HISTORICAL LOAN MODIFICATION REPORT
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Estimated
New Months for Mod Realized Loss Interest Loss to
Prospectus ID City Maturity Change to Trust Trust Comments
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
Total for All Loans:
Total for Loans in Current Month
# of Loans $ Balance
Modifications
Maturity Date Extensions:
Total
<PAGE>
Exhibit R
Form of Historical Loss Estimate Report
R-1
<PAGE>
EXHIBIT
HISTORICAL LOSS ESTIMATE REPORT
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Latest
Appraisal or Net Amount
Prospectus Property % Rec from Brokers Effective Received from Scheduled
ID Property Name Type City State Sale Opinion Date of Sale Sales Price Sale Balance
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- ---------------------------------------------------
Total P&I Servicing
Prospectus Advance Total Expenses Fees
ID Outstanding (Outstanding) Expense
- ---------------------------------------------------
<S> <C> <C> <C>
</TABLE>
Total all Loans:
Current Month Only:
<PAGE>
EXHIBIT
HISTORICAL LOSS ESTIMATE REPORT
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Date
Date Loss Minor Adj Loss % of
Prospectus Property Actual Losses Passed Minor Adj to Passed Total Loss with Scheduled
ID Property Name Type City Net Proceeds Passed Through Through Trust Through Adjustment Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total all Loans:
Current Month Only:
<PAGE>
Exhibit S
Form of NOI Adjustment Worksheet
S-1
<PAGE>
AS OF MM/DD/YY EXHIBIT
NOI ADJUSTMENT WORKSHEET
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW:
------------
Prospectus Number
---------------------------
Sched Balance/Paid to Date
---------------------------
Property Name
------------
Property Type
------------
Property Address
---------------------------
City, State
------------
Net Rentable Square Feet
---------------------------
Year Built/Renovated
----------------------------------------------- ---------------
Year of Operations Borrower Adjustment Normalized
------------ ------------- ---------------
Occupancy Rate
------------ ------------- ---------------
Average Rental Rate
------------ ------------- ---------------
INCOME:
---------------
No. of Months Annualized # of month
------------ ------------- ---------------
Period Ended Borrower Adjustment Normalized
Statement Classification
------------ ------------- ---------------
Rental Income - Category 1
------------ ------------- ---------------
Rental Income - Category 2
------------ ------------- ---------------
Rental Income - Category 3
------------ ------------- ---------------
Pass Through/Escalations
------------ ------------- ---------------
Other Income
------------ ------------- ---------------
------------ ------------- ---------------
Effective Gross Income
------------ ------------- ---------------
OPERATING EXPENSES:
------------ ------------- ---------------
Real Estate Taxes
------------ ------------- ---------------
Property insurance
------------ ------------- ---------------
Utilities
------------ ------------- ---------------
General and Administration
------------ ------------- ---------------
Repairs and Maintenance
------------ ------------- ---------------
Management Fees
------------ ------------- ---------------
Payroll and Benefits
------------ ------------- ---------------
Advertising and Marketing
------------ ------------- ---------------
Professional Fees
------------ ------------- ---------------
Other Expenses
------------ ------------- ---------------
Ground Rent
------------ ------------- ---------------
------------ ------------- ---------------
Total Operating Expenses
------------ ------------- ---------------
------------ ------------- ---------------
Operating Expense Ratio
------------ ------------- ---------------
------------ ------------- ---------------
Net Operating Income
------------ ------------- ---------------
------------ ------------- ---------------
Leasing Commissions
------------ ------------- ---------------
Tenant Improvements
------------ ------------- ---------------
Replacement Reserves
------------ ------------- ---------------
Other Capital Expense
------------ ------------- ---------------
Total Capital Items
------------ ------------- ---------------
------------ ------------- ---------------
NOI after Capital Items
------------ ------------- ---------------
------------ ------------- ---------------
Debt Service (per servicer)
------------ ------------- ---------------
Cash Flow after Debt Service
------------ ------------- ---------------
------------ ------------- ---------------
DSCR (NOI/Debt Service)
------------ ------------- ---------------
------------ ------------- ---------------
DSCR (after reserves\cap exp)
------------ ------------- ---------------
------------ ------------- ---------------
Source of Financial Data:
------------ ------------- ---------------
------------ ------------- ---------------
Income Comments:
------------ ------------- ---------------
------------ ------------- ---------------
Expense Comments:
------------ ------------- ---------------
------------ ------------- ---------------
Capital Items Comments:
------------ ------------- ---------------
</TABLE>
<PAGE>
Exhibit T
Form of Operating Statement Analysis
T-1
<PAGE>
AS OF MM/DD/YY EXHIBIT
OPERATING STATEMENT ANALYSIS REPORT
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW:
------------
Prospectus Number
---------------------------
Sched Balance/Paid to Date
---------------------------
Property Name
------------
Property Type
------------
Property Address
---------------------------
City, State
------------
Net Rentable Square Feet
---------------------------
Year Built/Renovated
-----------------------------------------------------------------------
Year of Operations Underwriting 1996 1997 1998 1999 YTD
-----------------------------------------------------------------------
Occupancy Rate
-----------------------------------------------------------------------
Average Rental Rate
-----------------------------------------------------------------------
INCOME:
-----------
No. of Months # of months
------------------------------------------------------------------------------------------------
Period Ended Underwriting 1996 1997 1998 1999 YTD 1998-Base 1998-1997
Statement Classification Basis Normalized Normalized Normalized AA Variance Variance
------------------------------------------------------------------------------------------------
Rental Income - Category 1
------------------------------------------------------------------------------------------------
Rental Income - Category 2
------------------------------------------------------------------------------------------------
Rental Income - Category 3
------------------------------------------------------------------------------------------------
Pass Through/Escalations
------------------------------------------------------------------------------------------------
Other Income
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Effective Gross Income
------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
------------------------------------------------------------------------------------------------
Real Estate Taxes
------------------------------------------------------------------------------------------------
Property insurance
------------------------------------------------------------------------------------------------
Utilities
------------------------------------------------------------------------------------------------
General and Administration
------------------------------------------------------------------------------------------------
Repairs and Maintenance
------------------------------------------------------------------------------------------------
Management Fees
------------------------------------------------------------------------------------------------
Payroll and Benefits
------------------------------------------------------------------------------------------------
Advertising and Marketing
------------------------------------------------------------------------------------------------
Professional Fees
------------------------------------------------------------------------------------------------
Other Expenses
------------------------------------------------------------------------------------------------
Ground Rent
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Total Operating Expenses
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Operating Expense Ratio
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Net Operating Income
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Leasing Commissions
------------------------------------------------------------------------------------------------
Tenant Improvements
------------------------------------------------------------------------------------------------
Replacement Reserves
------------------------------------------------------------------------------------------------
Other Capital Expense
------------------------------------------------------------------------------------------------
Total Capital Items
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
NOI after Capital Items
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Debt Service (per servicer)
------------------------------------------------------------------------------------------------
Cash Flow after Debt Service
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
DSCR (NOI/Debt Service)
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
DSCR (after reserves\cap exp)
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Source of Financial Data:
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Income Comments:
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Expense Comments:
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Capital Items Comments:
------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit U
Form of CMSA Periodic Update File Report
U-1
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Field
-----
Field Name Number Type Format
- ---------- ------ ---- ------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Transaction Id (pool ID) 1 AN XXX97001
- -------------------------------------------------------------------------------
Group Id (subgroup within a pool) 2 AN XXX9701A
- -------------------------------------------------------------------------------
Loan Id (loan number) 3 AN 00000000012345
- -------------------------------------------------------------------------------
Prospectus Id 4 AN 123
- -------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD
- -------------------------------------------------------------------------------
Current Beginning Scheduled Balance 6 Numeric 100000.00
- -------------------------------------------------------------------------------
Current Ending Scheduled Balance 7 Numeric 100000.00
- -------------------------------------------------------------------------------
Paid To Date 8 AN YYYYMMDD
- -------------------------------------------------------------------------------
Current Index Rate 9 Numeric 0.09
- -------------------------------------------------------------------------------
Current Note Rate 10 Numeric 0.09
- -------------------------------------------------------------------------------
Maturity Date 11 AN YYYYMMDD
- -------------------------------------------------------------------------------
Servicer and Trustee Fee Rate 12 Numeric 0.00025
- -------------------------------------------------------------------------------
Fee Rate/Strip Rate 1 13 Numeric 0.00001
- -------------------------------------------------------------------------------
Fee Rate/Strip Rate 2 14 Numeric 0.00001
- -------------------------------------------------------------------------------
Fee Rate/Strip Rate 3 15 Numeric 0.00001
- -------------------------------------------------------------------------------
Fee Rate/Strip Rate 4 16 Numeric 0.00001
- -------------------------------------------------------------------------------
Fee Rate/Strip Rate 5 17 Numeric 0.00001
- -------------------------------------------------------------------------------
Net Pass-Through Rate 18 Numeric 0
- -------------------------------------------------------------------------------
Next Index Rate 19 Numeric 0.09
- -------------------------------------------------------------------------------
Next Note Rate 20 Numeric 0.09
- -------------------------------------------------------------------------------
Next Rate Adjustment Date 21 AN YYYYMMDD
- -------------------------------------------------------------------------------
Next Payment Adjustment Date 22 AN YYYYMMDD
- -------------------------------------------------------------------------------
Scheduled Interest Amount 23 Numeric 1000.00
- -------------------------------------------------------------------------------
Scheduled Principal Amount 24 Numeric 1000.00
- -------------------------------------------------------------------------------
Total Scheduled P&I Due 25 Numeric 1000.00
- -------------------------------------------------------------------------------
Neg am/Deferred Interest Amount 26 Numeric 1000.00
- -------------------------------------------------------------------------------
Unscheduled Principal Collections 27 Numeric 1000.00
- -------------------------------------------------------------------------------
Other Principal Adjustments 28 Numeric 1000.00
- -------------------------------------------------------------------------------
Liquidation/Prepayment Date 29 AN YYYYMMDD
- -------------------------------------------------------------------------------
Prepayment Penalty/Yield Maint Received 30 Numeric 1000.00
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Field
-----
Field Name Number Description
- ---------- ------ -----------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Transaction Id (pool ID) 1 Unique Issue Identification Mnemonic
- -----------------------------------------------------------------------------------------------------------------------------------
Group Id (subgroup within a pool) 2 Unique Identification Number Assigned To Each Loan Group Within An Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Loan Id (loan number) 3 Unique Identification Number Assigned To Each Collateral Item In A Pool
- -----------------------------------------------------------------------------------------------------------------------------------
Prospectus Id 4 Unique Identification Number Assigned To Each Collateral Item In The Prospectus
- -----------------------------------------------------------------------------------------------------------------------------------
Distribution Date 5 Date Payments Made To Certificateholders
- -----------------------------------------------------------------------------------------------------------------------------------
Current Beginning Scheduled Balance 6 Outstanding Scheduled Principal Balance At The Beginning Of The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Current Ending Scheduled Balance 7 Outstanding Scheduled Principal Balance At The End Of The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Paid To Date 8 Due Date Of The Last Interest Payment Received
- -----------------------------------------------------------------------------------------------------------------------------------
Current Index Rate 9 Index Rate Used In The Determination Of The Current Period Gross Interest Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Current Note Rate 10 Annualized Gross Rate Applicable To The Calculation Of The Current Period
Scheduled Interest
- -----------------------------------------------------------------------------------------------------------------------------------
Maturity Date 11 Date Collateral Is Scheduled To Make Its Final Payment
- -----------------------------------------------------------------------------------------------------------------------------------
Servicer and Trustee Fee Rate 12 Annualized Fee Paid To The Servicer And Trustee
- -----------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 1 13 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 2 14 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 3 15 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 4 16 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 5 17 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Net Pass-Through Rate 18 Annualized Interest Rate Applicable To The Calculation Of The Current Period
Remittance Interest
- -----------------------------------------------------------------------------------------------------------------------------------
Next Index Rate 19 Index Rate Used In The Determination Of The Next Period Gross Interest Rate
- -----------------------------------------------------------------------------------------------------------------------------------
Next Note Rate 20 Annualized Gross Interest Rate Applicable To The Calculation Of The Next Period
Scheduled Interest
- -----------------------------------------------------------------------------------------------------------------------------------
Next Rate Adjustment Date 21 Date Note Rate Is Next Scheduled To Change
- -----------------------------------------------------------------------------------------------------------------------------------
Next Payment Adjustment Date 22 Date Scheduled P&I Amount Is Next Scheduled To Change
- -----------------------------------------------------------------------------------------------------------------------------------
Scheduled Interest Amount 23 Scheduled Gross Interest Payment Due For The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Scheduled Principal Amount 24 Scheduled Principal Payment Due For The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Total Scheduled P&I Due 25 Scheduled Principal And Interest Payment Due For The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Neg am/Deferred Interest Amount 26 Negative Amortization/Deferred Interest Amount Due For The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Unscheduled Principal Collections 27 Unscheduled Payments Of Principal Received During The Related Collection Period
- -----------------------------------------------------------------------------------------------------------------------------------
Other Principal Adjustments 28 Unscheduled Principal Adjustments For The Related Collection Period
- -----------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Date 29 Date Unscheduled Payment Of Principal Received
- -----------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty/Yield Maint Received 30 Additional Payment Required From Borrower Due To Prepayment Of Loan Prior To
Maturity
<CAPTION>
- ---------------------------------------------------------------------------------------------
Field
-----
Field Name Number Workout Strategy Code
- ---------- ------ --------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Transaction Id (pool ID) 1
- ---------------------------------------------------------------------------------------------
Group Id (subgroup within a pool) 2
- ---------------------------------------------------------------------------------------------
Loan Id (loan number) 3
- ---------------------------------------------------------------------------------------------
Prospectus Id 4
- ---------------------------------------------------------------------------------------------
Distribution Date 5 9 Pending Return to Master Servicer
- ---------------------------------------------------------------------------------------------
Current Beginning Scheduled Balance 6 3 Bankruptcy
- ---------------------------------------------------------------------------------------------
Current Ending Scheduled Balance 7 4 Extension
- ---------------------------------------------------------------------------------------------
Paid To Date 8
- ---------------------------------------------------------------------------------------------
Current Index Rate 9 5 Note Sale
- ---------------------------------------------------------------------------------------------
Current Note Rate 10 6 DPO
- ---------------------------------------------------------------------------------------------
Maturity Date 11
- ---------------------------------------------------------------------------------------------
Servicer and Trustee Fee Rate 12
- ---------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 1 13 10 Deed In Lieu Of Foreclosure
- ---------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 2 14
- ---------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 3 15
- ---------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 4 16
- ---------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 5 17
- ---------------------------------------------------------------------------------------------
Net Pass-Through Rate 18
- ---------------------------------------------------------------------------------------------
Next Index Rate 19
- ---------------------------------------------------------------------------------------------
Next Note Rate 20
- ---------------------------------------------------------------------------------------------
Next Rate Adjustment Date 21
- ---------------------------------------------------------------------------------------------
Next Payment Adjustment Date 22
- ---------------------------------------------------------------------------------------------
Scheduled Interest Amount 23
- ---------------------------------------------------------------------------------------------
Scheduled Principal Amount 24
- ---------------------------------------------------------------------------------------------
Total Scheduled P&I Due 25
- ---------------------------------------------------------------------------------------------
Neg am/Deferred Interest Amount 26
- ---------------------------------------------------------------------------------------------
Unscheduled Principal Collections 27
- ---------------------------------------------------------------------------------------------
Other Principal Adjustments 28
- ---------------------------------------------------------------------------------------------
Liquidation/Prepayment Date 29
- ---------------------------------------------------------------------------------------------
Prepayment Penalty/Yield Maint Received 30
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00
- -------------------------------------------------------------------------------
Liquidation/Prepayment Code 32 Numeric 1
- -------------------------------------------------------------------------------
Most Recent ASER $ 33 Numeric 1000.00
- -------------------------------------------------------------------------------
Most Recent ASER Date 34 AN YYYYMMDD
- -------------------------------------------------------------------------------
Cumulative ASER $ 35 Numeric 1000.00
- -------------------------------------------------------------------------------
Actual Balance 36 Numeric 100000.00
- -------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 Numeric 1000.00
- -------------------------------------------------------------------------------
Total T&I Advance Outstanding 38 Numeric 1000.00
- -------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 Numeric 1000.00
- -------------------------------------------------------------------------------
Status of Loan 40 AN 1
- -------------------------------------------------------------------------------
In Bankruptcy 41 AN Y
- -------------------------------------------------------------------------------
Foreclosure Date 42 AN YYYYMMDD
- -------------------------------------------------------------------------------
REO Date 43 AN YYYYMMDD
- -------------------------------------------------------------------------------
Bankruptcy Date 44 AN YYYYMMDD
- -------------------------------------------------------------------------------
Net Proceeds Received on Liquidation 45 Numeric 100000.00
- -------------------------------------------------------------------------------
Liquidation Expense 46 Numeric 100000.00
- -------------------------------------------------------------------------------
Realized Loss to Trust 47 Numeric 10000.00
- -------------------------------------------------------------------------------
Date of Last Modification 48 AN YYYYMMDD
- -------------------------------------------------------------------------------
Modification Code 49 Numeric 1
- -------------------------------------------------------------------------------
Modified Note Rate 50 Numeric 0.09
- -------------------------------------------------------------------------------
Modified Payment Rate 51 Numeric 0.09
- -------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 52 Numeric 1000.00
- -------------------------------------------------------------------------------
Preceding Fiscal Year Expenses 53 Numeric 1000.00
- -------------------------------------------------------------------------------
Preceding Fiscal Year NOI 54 Numeric 1000.00
- -------------------------------------------------------------------------------
Preceding Fiscal Year Debt Service Amt. 55 Numeric 1000.00
- -------------------------------------------------------------------------------
Preceding Fiscal Year DSCR 56 Numeric 2.55
- -------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85
- -------------------------------------------------------------------------------
Preceding FY Financial As of Date 58 AN YYYYMMDD
- -------------------------------------------------------------------------------
Second Preceding FY Revenue 59 Numeric 1000.00
- -------------------------------------------------------------------------------
Second Preceding FY Expenses 60 Numeric 1000.00
- -------------------------------------------------------------------------------
Second Preceding FY NOI 61 Numeric 1000.00
- -------------------------------------------------------------------------------
Second Preceding FY Debt Service 62 Numeric 1000.00
- -------------------------------------------------------------------------------
Second Preceding FY DSCR 63 Numeric 2.55
- -------------------------------------------------------------------------------
Sec Preceding FY Physical Occupancy 64 Numeric 0.85
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Prepayment Interest Excess (Shortfall) 31 Scheduled Gross Interest Applicable To The Prepayment Amount
- -----------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Code 32 See Liquidation/Prepayment Codes Legend
- -----------------------------------------------------------------------------------------------------------------------------------
Most Recent ASER $ 33 Excess Of The Principal Balance Over The Defined Appraisal Percentage
- -----------------------------------------------------------------------------------------------------------------------------------
Most Recent ASER Date 34 Date ASER Amount Applied To Loan
- -----------------------------------------------------------------------------------------------------------------------------------
Cumulative ASER $ 35 Cumulative ASER Amount
- -----------------------------------------------------------------------------------------------------------------------------------
Actual Balance 36 Outstanding Actual Principal Balance At the End of The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 Outstanding P&I Advances At The End Of The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Total T&I Advance Outstanding 38 Outstanding Taxes & Insurance Advances At The End Of The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 Other Outstanding Advances At The End Of The Current Period
- -----------------------------------------------------------------------------------------------------------------------------------
Status of Loan 40 See Status Of Loan Legend
- -----------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy 41 Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
- -----------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date 42 Date Of Foreclosure
- -----------------------------------------------------------------------------------------------------------------------------------
REO Date 43 Date Of REO
- -----------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Date 44 Date of Bankruptcy
- -----------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Received on Liquidation 45 Net Proceeds Received On Liquidation To Be Remitted To The Trust Per The Trust
Documentation
- -----------------------------------------------------------------------------------------------------------------------------------
Liquidation Expense 46 Expenses Associated With The Liquidation To Be Netted From The Trust Per The
Trust Documentation
- -----------------------------------------------------------------------------------------------------------------------------------
Realized Loss to Trust 47 Liquidation Balance Less Net Liquidation Proceeds Received
- -----------------------------------------------------------------------------------------------------------------------------------
Date of Last Modification 48 Date Loan Was Modified
- -----------------------------------------------------------------------------------------------------------------------------------
Modification Code 49 See Modification Codes Legend
- -----------------------------------------------------------------------------------------------------------------------------------
Modified Note Rate 50 Note Rate Loan Modified To
- -----------------------------------------------------------------------------------------------------------------------------------
Modified Payment Rate 51 Payment Rate Loan Modified To
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 52 Preceding Fiscal Year Revenue
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Expenses 53 Preceding Fiscal Year Expenses
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 54 Preceding Fiscal Year Net Operating Income
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Service Amt. 55 Preceding Fiscal Year Debt Service Amount
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR 56 Preceding Fiscal Year Debt Service Coverage Ratio
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 57 Preceding Fiscal Year Physical Occupancy
- -----------------------------------------------------------------------------------------------------------------------------------
Preceding FY Financial As of Date 58 Preceding Fiscal Year Financial As Of Date
- -----------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Revenue 59 Second Preceding Fiscal Year Revenue
- -----------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Expenses 60 Second Preceding Fiscal Year Expenses
- -----------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY NOI 61 Second Preceding Fiscal Year Net Operating Income
- -----------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Debt Service 62 Second Preceding Fiscal Year Debt Service
- -----------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY DSCR 63 Second Preceding Fiscal Year Debt Service Coverage Ratio
- -----------------------------------------------------------------------------------------------------------------------------------
Sec Preceding FY Physical Occupancy 64 Second Preceding Fiscal Year Physical Occupancy
<CAPTION>
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Prepayment Interest Excess (Shortfall) 31
- ----------------------------------------------------------------------------------------------
Liquidation/Prepayment Code 32
- ----------------------------------------------------------------------------------------------
Most Recent ASER $ 33
- ----------------------------------------------------------------------------------------------
Most Recent ASER Date 34
- ----------------------------------------------------------------------------------------------
Cumulative ASER $ 35 2 Foreclosure
- ----------------------------------------------------------------------------------------------
Actual Balance 36
- ----------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37
- ----------------------------------------------------------------------------------------------
Total T&I Advance Outstanding 38
- ----------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39
- ----------------------------------------------------------------------------------------------
Status of Loan 40
- ----------------------------------------------------------------------------------------------
In Bankruptcy 41
- ----------------------------------------------------------------------------------------------
Foreclosure Date 42
- ----------------------------------------------------------------------------------------------
REO Date 43
- ----------------------------------------------------------------------------------------------
Bankruptcy Date 44
- ----------------------------------------------------------------------------------------------
Net Proceeds Received on Liquidation 45
- ----------------------------------------------------------------------------------------------
Liquidation Expense 46
- ----------------------------------------------------------------------------------------------
Realized Loss to Trust 47
- ----------------------------------------------------------------------------------------------
Date of Last Modification 48 8 Resolved
- ----------------------------------------------------------------------------------------------
Modification Code 49
- ----------------------------------------------------------------------------------------------
Modified Note Rate 50
- ----------------------------------------------------------------------------------------------
Modified Payment Rate 51
- ----------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 52
- ----------------------------------------------------------------------------------------------
Preceding Fiscal Year Expenses 53
- ----------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 54
- ----------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Service Amt. 55
- ----------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR 56
- ----------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 57
- ----------------------------------------------------------------------------------------------
Preceding FY Financial As of Date 58
- ----------------------------------------------------------------------------------------------
Second Preceding FY Revenue 59
- ----------------------------------------------------------------------------------------------
Second Preceding FY Expenses 60
- ----------------------------------------------------------------------------------------------
Second Preceding FY NOI 61
- ----------------------------------------------------------------------------------------------
Second Preceding FY Debt Service 62
- ----------------------------------------------------------------------------------------------
Second Preceding FY DSCR 63
- ----------------------------------------------------------------------------------------------
Sec Preceding FY Physical Occupancy 64
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Sec Preceding FY Financial As of Date 65 AN YYYYMMDD
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD NOI 68 Numeric 1000.00
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD DSCR 70 Numeric 2.55
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD
- -------------------------------------------------------------------------------
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD
- -------------------------------------------------------------------------------
Most Recent Appraisal Date 74 AN YYYYMMDD
- -------------------------------------------------------------------------------
Most Recent Appraisal Value 75 Numeric 100000.00
- -------------------------------------------------------------------------------
Workout Strategy Code 76 Numeric 1
- -------------------------------------------------------------------------------
Most Recent Spec Service Transfer Date 77 AN YYYYMMDD
- -------------------------------------------------------------------------------
Most Recent Master Service Return Date 78 AN YYYYMMDD
- -------------------------------------------------------------------------------
Date Asset is Expected to Be Resolved 79 AN YYYYMMDD
- -------------------------------------------------------------------------------
Year Last Renovated 80 AN 1997
- -------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Sec Preceding FY Financial As of Date 65 Second Preceding Fiscal Year Financial As Of Date
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Revenue 66 Most Recent Fiscal Year To Date Revenue
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Expenses 67 Most Recent Fiscal Year To Date Expenses
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD NOI 68 Most Recent Fiscal Year To Date Net Operating Income
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Debt Service 69 Most Recent Fiscal Year To Date Debt Service
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD DSCR 70 Most Recent Fiscal Year To Date Debt Service Coverage Ratio
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Phys. Occ. 71 Most Recent Fiscal Year To Date Physical Occupancy
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Start Date 72 Most Recent Fiscal Year To Date Start Date
- -------------------------------------------------------------------------------------------------------------------
Most Recent Fiscal YTD End Date 73 Most Recent Fiscal Year To Date End Date
- -------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 74 The Date Of The Latest Available Appraisal For The Property
- -------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 75 The Latest Available Appraisal Value For The Property
- -------------------------------------------------------------------------------------------------------------------
Workout Strategy Code 76 See Workout Strategy Codes Legend
- -------------------------------------------------------------------------------------------------------------------
Most Recent Spec Service Transfer Date 77 Date Transferred To The Special Servicer
- -------------------------------------------------------------------------------------------------------------------
Most Recent Master Service Return Date 78 Date Returned To The Master Servicer
- -------------------------------------------------------------------------------------------------------------------
Date Asset is Expected to Be Resolved 79 Date Asset Is Expected To Be Resolved
- -------------------------------------------------------------------------------------------------------------------
Year Last Renovated 80 Year Property Last Renovated
- -------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sec Preceding FY Financial As of Date 65
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Revenue 66
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Expenses 67
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD NOI 68
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Debt Service 69
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD DSCR 70
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Phys. Occ. 71
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD Start Date 72
- ----------------------------------------------------------------------------------------------
Most Recent Fiscal YTD End Date 73
- ----------------------------------------------------------------------------------------------
Most Recent Appraisal Date 74
- ----------------------------------------------------------------------------------------------
Most Recent Appraisal Value 75
- ----------------------------------------------------------------------------------------------
Workout Strategy Code 76
- ----------------------------------------------------------------------------------------------
Most Recent Spec Service Transfer Date 77
- ----------------------------------------------------------------------------------------------
Most Recent Master Service Return Date 78
- ----------------------------------------------------------------------------------------------
Date Asset is Expected to Be Resolved 79 7 REO
- ----------------------------------------------------------------------------------------------
Year Last Renovated 80
- ----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT V
FORM OF CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER OR PROSPECTIVE PURCHASER
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Series 1999-C1
In accordance with Section 3.15 of the Pooling and Servicing
Agreement, dated as of November 1, 1999 (the "Pooling and Servicing Agreement"),
among Merrill Lynch Mortgage Investors, Inc., as depositor (the "Depositor"),
ORIX Real Estate Capital Markets, LLC, as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer, and Norwest Bank Minnesota, National
Association, as trustee (in such capacity, the "Trustee"), with respect to the
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1999-C1 (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. _____ The undersigned is a beneficial owner of the Class __
Certificates.
(a) The undersigned is requesting the information identified
on the schedule attached hereto pursuant to Section 3.15 of
the Pooling and Servicing Agreement (the "Information").
(b) In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in making the evaluation described in the
paragraph 1(a)), and such Information will not, without the
prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in
part; provided that the undersigned may provide all or any
part of the Information to any other person or entity that
holds or is contemplating the purchase of any Certificate or
interest therein, but only if such person or entity confirms
in writing such ownership interest or
V-1
<PAGE>
prospective ownership interest and agrees to keep it
confidential.
2. _____ The undersigned is contemplating an investment in the
Class __ Certificates.
(a) The undersigned is requesting the following information
for use in evaluating such possible investment:
___ (i) the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement; or
___ (ii) the Distribution Date Statements provided
pursuant to Section 4.02 of the Pooling and Servicing
Agreement (collectively, the "Information").
(b) In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in making the investment decision described
in paragraph 2), and such Information will not, without the
prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees,
agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in
part.
3. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended, (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
4. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust for any
loss, liability or expense incurred thereby with respect to
any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
V-2
<PAGE>
[BENEFICIAL HOLDER OF A CERTIFICATE]
By:________________________________
Name:______________________________
Title:_____________________________
[PROSPECTIVE PURCHASER]
By:________________________________
Name:______________________________
Title:_____________________________
V-3
<PAGE>
EXHIBIT W
FORM OF LOST NOTE AFFIDAVIT AND INDEMNITY
STATE OF NW YORK )
: SS.:
COUNTY OF NEW YORK )
_______________, ______________, being duly sworn, deposes and says:
1. that he is an authorized signatory of [Insert Name of Seller]
("______");
2. that ______ is the owner and holder of a mortgage loan in the
original principal amount of $________ secured by a mortgage (the "Mortgage") on
the premises known as ___________ __________ located in _________;
3. (a) that ______, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original Note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a Note in the original sum of $________ made by ________, to
[Name of Payee], under date of ________ (the "Note");
4. that the note is now owned and held by ______,
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except ______;
7. upon assignment of the Note by ______ to Merrill Lynch Mortgage
Investors, Inc. (the "Depositor") and subsequent assignment by Depositor to
Norwest Bank Minnesota, National Association, solely in its capacity of trustee
for the benefit of the Holders of Merrill Lynch Mortgage Investors, Inc.
Mortgage Pass-Through Certificate, Series 1999-C1 (the "Trustee") (which
assignment may, at the discretion of the Depositor, be made directly by ______
to the Trustee) ______ covenants and agrees (a) promptly to deliver to the
Trustee the original Note if it is subsequently found, and (b) to indemnify and
hold harmless the Trustee and its successors and assigns from and against any
and
W-1-1
<PAGE>
all costs, expenses and monetary losses arising as a result of ______'s or the
Depositor's failure to deliver said original Note to the Trustee.
[INSERT NAME OF SELLER]
By:_______________________
Authorized Signatory
Sworn to before me this
___ day of ___________.
W-1-2
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") dated as of
November 1, 1999, is between Merrill Lynch Mortgage Investors Inc., a Delaware
corporation (the "Purchaser"), and Merrill Lynch Mortgage Capital Inc., a
Delaware corporation (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer to the
Purchaser, subject to the terms and conditions set forth below, certain mortgage
loans (the "Mortgage Loans"), which are described in, and set forth in, the
mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit
A.
The Purchaser intends to deposit the Mortgage Loans into a trust
fund (the "Trust Fund"), together with certain mortgage loans (the "Other
Mortgage Loans") purchased by the Purchaser pursuant to the Other Mortgage Loan
Purchase Agreements (as defined herein), the beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). The Trust Fund will be created and the Certificates will be
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of November 1, 1999, by and among Merrill Lynch
Mortgage Investors Inc., as depositor (the "Depositor"), ORIX Real Estate
Capital Markets, LLC, as master servicer (the "Master Servicer"), ORIX Real
Estate Capital Markets, LLC, as special servicer (the "Special Servicer"), and
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through Merrill Lynch,
Pierce, Fenner & Smith Incorporated and PaineWebber Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
November 4, 1999. The Purchaser intends to sell certain of the Certificates (the
"Publicly Offered Certificates") to Merrill Lynch, Pierce, Fenner & Smith
Incorporated and PaineWebber Incorporated (in such capacity, the "Underwriters")
on the Closing Date pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of November 1, 1999. The transactions contemplated by the
foregoing are referred to herein as the "Securitization Transaction".
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which
are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
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ARTICLE I.
DEFINITIONS
Capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the Pooling and Servicing Agreement.
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the Other Mortgage Loans sold to the Purchaser by ORIX Real Estate
Capital Markets, LLC and Paine Webber Real Estate Securities Inc. pursuant to
the Other Mortgage Loan Purchase Agreements, or as otherwise separately agreed
upon in writing by the Purchaser, the Mortgage Loan Seller, ORIX Real Estate
Capital Markets, LLC and Paine Webber Real Estate Securities Inc..
"Closing Date": November 4, 1999.
"Cut-Off Date": November 1, 1999.
"Initial Pool Balance": An amount equal to approximately $592,445,159.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of trust
or other instrument securing a Mortgage Note and creating a lien on the fee or
leasehold interest in the related Mortgaged Property.
"Mortgage File": The meaning ascribed to such term in the Pooling and
Servicing Agreement, except that the endorsement referenced in clauses (i),
(iv), (v) and (viii) may be in blank.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.3 of this Agreement. As used herein, the
term "Mortgage Loan" includes each related Mortgage Note, the related Mortgage
and other documents contained in the related Mortgage File and any related
agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage, Assignment
of Leases (if any) and other agreements executed in connection with such
Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any other Person that owns or has acquired the related Mortgaged
Property and/or assumed the obligations of the original obligor under the
Mortgage Note. The representations
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<PAGE>
and warranties made by the Mortgage Loan Seller in this Agreement as to "each
Mortgagor" are given with respect to the obligor.
"Other Mortgage Loan Purchase Agreement": Either(i) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between ORIX Real
Estate Capital Markets, LLC and the Purchaser, or (ii) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between Paine
Webber Real Estate Securities Inc. and the Purchaser.
"Pooling and Servicing Agreement": The Pooling and Servicing Agreement,
dated and effective as of November 1, 1999, among Purchaser, Master Servicer,
Special Servicer and Trustee
"Prospectus Supplement": That certain prospectus supplement, dated October
29, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan required
to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as of
the date of purchase;
(ii) all accrued and unpaid interest to but not including the Due
Date in the Due Period during which such Mortgage Loan or REO Loan was
purchased;
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate and unpaid
Special Servicing Fees allocable to such Mortgage Loan; plus
(iv) all reasonable out-of-pocket expenses reasonably incurred or to
be incurred by the Master Servicer, the Special Servicer, the Depositor or
the Trustee in respect of the Breach or Document Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Term Sheet": The Structural and Collateral Term Sheet dated October
15, 1999 in respect of the Securitization Transaction.
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ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the terms and
conditions of this Agreement, the Mortgage Loan Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans on the Closing Date.
(b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Willkie Farr & Gallagher, New York, New York,
at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full consideration for
the Mortgage Loan Seller's sale of the Mortgage Loans to the Purchaser, the
Purchaser will deliver to the Mortgage Loan Seller an amount equal to
$265,924,268 (the "Purchase Price") in immediately available funds, which
represents the purchase price of the Mortgage Loans (with accrued interest) net
of $1,290,288 which, subject to Section 5.1 hereof, represents the Mortgage Loan
Seller's Allocable Share of the expenses incurred in connection with the
Securitization Transaction.
2.3. Conveyance of Mortgage Loans. On the Closing Date, the Mortgage
Loan Seller shall sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, and the
Purchaser shall purchase, all right, title and interest of the Mortgage Loan
Seller in and to the Mortgage Loans, including: (i) all scheduled payments of
interest and principal due on or with respect to the Mortgage Loans after the
Cut-Off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-Off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-Off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-Off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-Off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
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<PAGE>
2.4. Delivery of Mortgage Loan Documents. (a) The Purchaser hereby
directs the Mortgage Loan Seller and the Mortgage Loan Seller hereby agrees to
deliver to each of the Trustee, the Custodian, the Master Servicer and the
Special Servicer (x) all documents, instruments and agreements required to be
delivered by the Purchaser to such parties pursuant to Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of Section
2.01 of the Pooling and Servicing Agreement, and (y) such other documents,
instruments and agreements relating to the Mortgage Loans as the Purchaser, the
Trustee, the Custodian, the Master Servicer and the Special Servicer may
reasonably request.
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. If the Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments required to be recorded or filed prior to the Closing Date
and to be delivered as part of a Mortgage File on or before the Closing Date,
solely because of a delay caused by the public recording or filing office where
such document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument provided
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording or filing) is delivered to the Purchaser, the Trustee or
the Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of a
Mortgage to be a true and complete copy of the original thereof submitted for
recording or filing), with evidence of recording or filing thereon, is delivered
to the Purchaser, the Trustee or the Custodian within 120 days of the Closing
Date (or within such longer period after the Closing Date as the Purchaser may
consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller is, as certified in writing to the Purchaser and the
Trustee no less often than every 90-days, in good faith attempting to obtain
from the appropriate county recorder's office such original or photocopy). If
the Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Section 2.4(b) shall
be deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of recording thereon and certified in the
case of a Mortgage by the appropriate county recorder's office to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Purchaser, the Trustee or a Custodian appointed thereby on or before the
Closing Date together with an affidavit certifying that the original thereof has
been lost or destroyed. With respect to any Mortgage Loan, and notwithstanding
the foregoing or Section 2.4(a), the Mortgage Loan Seller may deliver a
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UCC-3 on or before the Closing Date that does not contain the filing information
for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has not been
returned to the Mortgage Loan Seller by the applicable filing office, and the
Mortgage Loan Seller may deliver assignments of documents and/or instruments
that do not contain the recording information for the related documents and/or
instruments, as applicable, if such documents and/or instruments have not been
returned to the Mortgage Loan Seller by the applicable recording office. The
Mortgage Loan Seller hereby authorizes the Purchaser, acting in its stead and on
its behalf, to fill in any missing filing or recording information or any
instrument or document required to be delivered pursuant to this subsection (b).
The delivery of an original pro forma or specimen title insurance policy or an
original marked, redated and recertified commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf no later than the 90th day following the
Closing Date.
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Mortgage Loan Seller shall as to each Mortgage Loan,
promptly (and in any event within 30 days of the later of the Closing Date and
the Purchaser's and Trustee's actual receipt of the related documents) cause to
be delivered to the Trustee in recordable form for recording or filing, as the
case may be, in the appropriate public office for real property records or UCC
Financing Statements, as appropriate, each assignment of an instrument and/or
document enumerated in clauses (ii), (iii), (iv), (v) and (viii) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement and each
UCC-3 to the Trustee as indicated in such assignment documents. Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee or its designee following recording, and each such UCC-3
shall reflect that the file copy thereof should be returned to the Trustee or
its designee following filing. In connection with the Mortgage Loan Seller's
delivery of Mortgage Loan documents in accordance with the preceding sentences,
the Mortgage Loan Seller hereby authorizes the Trustee as the transferee of the
Purchaser to complete each endorsement or assignment in blank appearing thereon
in favor of the Trustee in such manner as the Trustee shall determine in the
exercise of its sole discretion in its capacity as Trustee under the Pooling and
Servicing Agreement (provided that such endorsement or assignment will be
without recourse, representation or warranty to the Mortgage Loan Seller except
as expressly set forth in this Agreement). If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Purchaser or an assignee thereof, which may include, the Trustee or
its Custodian or its agent shall notify the Mortgage Loan Seller of same. The
Mortgage Loan Seller shall cure such defect within 90 days or the Purchaser may
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate, all at the Mortgage Loan
Seller's expense. The Purchaser shall execute, or cause the Mortgage Loan Seller
to execute any replacement document or instrument being filed in substitution
for any such lost or returned unrecorded or unfiled document or instrument at
the Mortgage Loan Seller's expense and assist the Purchaser, the Trustee or a
Custodian or its agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
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assignment to the Trustee or to file any UCC-3 in those jurisdictions where, in
the written opinion of local counsel of Purchaser, the Trustee or a Custodian
acceptable to the Purchaser and the Trustee, such recordation and/or filing is
not required to protect the Purchaser's or the Trustee's interest in the
Mortgage Loans against sale, further assignment, satisfaction or discharge by
the Mortgage Loan Seller or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in escrow
accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Master Servicer
promptly after the Closing Date, but in all events within three (3) business
days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Pursuant to Section 2.02 and 2.03
of the Pooling and Servicing Agreement, if the Purchaser or an assignee thereof,
which may include the Trustee or the Custodian on its behalf, discovers or
receives notice of a Document Defect or a Breach (each as defined in the Pooling
and Servicing Agreement), the Mortgage Loan Seller shall correct or cure any
such Document Defect or Breach or repurchase or substitute such Defective
Mortgage Loan in accordance with Section 3.3 of this Agreement.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the Closing
Date:
(i) Purchaser Duly Formed and Authorized. The Purchaser is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and the Purchaser has taken
all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including, but not limited to, the
power and authority to purchase and acquire the Mortgage Loans in
accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due
authorization, execution and delivery of this Agreement by each
other party hereto, this Agreement and all of the obligations of the
Purchaser hereunder are the legal,
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valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with the terms of this Agreement, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and
delivery of this Agreement and the performance by the Purchaser of
its obligations hereunder will not conflict with any provisions of
any law or regulations to which the Purchaser is subject, or
conflict with, result in a breach of or constitute a default under
any of the terms, conditions or provisions of the certificate of
incorporation or the by-laws of the Purchaser or any indenture,
agreement or instrument to which the Purchaser is a party or by
which it is bound, or any order or decree applicable to the
Purchaser, or result in the creation or imposition of any lien on
any of the Purchaser's assets or property, which would materially
and adversely affect the ability of the Purchaser to carry out the
transactions contemplated by this Agreement; the Purchaser has
obtained any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery
and performance by the Purchaser of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding
pending or, to the Purchaser's knowledge, threatened against the
Purchaser in any court or by or before any other governmental agency
or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Purchaser to
carry out the transactions contemplated by this Agreement.
3.2. Representations and Warranties of the Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants with
respect to itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and the Mortgage Loan Seller has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in accordance
with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Mortgage Loan Seller hereunder
are the legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage
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Loan Seller in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and delivery
of this Agreement and the performance by the Mortgage Loan Seller of its
obligations hereunder will not conflict with any provisions of any law or
regulations to which the Mortgage Loan Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of the certificate of incorporation or the
by-laws of the Mortgage Loan Seller or any indenture, agreement or
instrument to which the Mortgage Loan Seller is a party or by which it is
bound, or any order or decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on any of the Mortgage
Loan Seller's assets or property, which would materially and adversely
affect the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement; the Mortgage Loan Seller has
obtained any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Mortgage Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending
or, to the Mortgage Loan Seller's knowledge, threatened against the
Mortgage Loan Seller in any court or by or before any other governmental
agency or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Mortgage Loan Seller
to carry out the transactions contemplated by this Agreement;
(v) Mortgage Files in Possession. The Mortgage Loan Seller or its
custodian is in possession of a Mortgage File with respect to each
Mortgage Loan identified on the Mortgage Loan Schedule and each such
Mortgage File will be transferred to the Purchaser or the Trustee as its
designee. The Mortgage Loan Seller has not withheld any material
information with respect to the Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in default
in the performance of any obligations, covenants or conditions contained
in any material agreement or instrument to which it is party, which
default might have consequences that would materially and adversely affect
the financial conditions or operations of the Mortgage Loan Seller or its
properties taken as a whole or would have consequences that would
materially and adversely affect its performance hereunder.
(b) Representations and Warranties as to the Mortgage Loans. The
Mortgage Loan Seller hereby makes the representations and warranties attached
hereto as Schedule I (subject to the exceptions set forth in Exhibit D)with
respect to each Mortgage Loan, as of the date specified therein or, if no such
date is specified, as of the Closing Date.
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3.3. Remedies for Breach of Certain Representations and Warranties.
(a) It is understood and agreed that the representations and warranties set
forth herein shall survive the sale of the Mortgage Loans to the Purchaser,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement, and shall inure to the benefit of the Purchaser, and the
Trustee as the transferee of the Purchaser, notwithstanding (1) any restrictive
or qualified endorsement on any Mortgage Note, assignment of Mortgage,
Assignment of Leases, Rents and Profits or reassignments thereof (2) any
termination of this Agreement or (3) the examination by any Person of, or
failure by any Person to examine, any Mortgage File. It is further understood
and agreed that the representations and warranties set forth in Section 3.2(b)
relate only to the Mortgage Loans conveyed hereunder and do not cover any
mortgage loans sold to the Purchaser by any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage Loan
Seller, the Purchaser or the Trustee that (i) a Document Defect (as defined in
the Pooling and Servicing Agreement) exists, or (ii) a Breach (as defined in the
Pooling and Servicing Agreement) has occurred with respect to any Mortgage Loan
which, in the case of either clause (i) or (ii), materially and adversely
affects the value of such Mortgage Loan or the interests of the
Certificateholders therein, the party discovering the existence of such Document
Defect or Breach with respect to such Mortgage Loan (a "Defective Mortgage
Loan") shall give prompt written notice thereof to each of the parties to the
Pooling and Servicing Agreement and the Mortgage Loan Seller.
Within 90 days of the earlier of its discovery or its receipt of
notice of any such Defective Mortgage Loan (or in the case of a Document Defect
or Breach relating to a Mortgage Loan not being a "qualified mortgage" within
the meaning of the REMIC Provisions, no later than 90 days following the date on
which any party to the Pooling and Servicing Agreement discovers such Document
Defect or Breach), the Mortgage Loan Seller shall cure such Document Defect or
Breach in all material respects, which shall include payment of losses and any
expenses associated therewith, or, if such Document Defect or Breach cannot be
cured within such 90-day period, either (i) repurchase the affected Mortgage
Loan at the applicable Repurchase Price not later than the end of such 90-day
period, or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan and pay to the Trustee, for deposit into the Certificate
Account, any Substitution Shortfall Amount in connection therewith no later than
the end of such 90-day period. Notwithstanding the above, if such Document
Defect or Breach is capable of being cured but not within such 90-day period,
such Document Defect or Breach does not relate to the Mortgage Loan not being
treated as a "qualified mortgage" within the meaning of the REMIC Provisions,
and the Mortgage Loan Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, such Mortgage
Loan Seller shall have an additional 90-days to complete such cure (or, failing
such cure, to repurchase the related Mortgage Loan); provided, however, that
with respect to such additional 90 day period, the Mortgage Loan Seller shall
have delivered to the Trustee, the Master Servicer and each Rating Agency, an
officer's certificate with all relevant correspondence and communication in the
possession of the Mortgage Loan Seller as of the date thereof relating to such
Document
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Defect or Breach, that describes the reasons that a cure was not effected within
the first 90-day cure period, what actions the Mortgage Loan Seller is pursuing
in connection with the cure thereof, the actions it proposes to take to effect
such cure, and which states that it anticipates such Document Defect or Breach
will be cured within the additional 90-day period.
If the affected Mortgage Loan is to be repurchased, the payment of
the Repurchase Price with respect to any Mortgage Loans repurchased by the
Mortgage Loan Seller shall be paid in accordance with the directions of the
Master Servicer as agent for the Trustee. If the affected Mortgage Loan is to be
substituted, (I) the Mortgage Loan Seller shall, on the date of substitution,
remit the Substitution Shortfall Amount by wire transfer of immediately
available funds in accordance with the directions of the Master Servicer as
agent for the Trustee; (II) no such substitution may be made in any calendar
month after the Determination Date for such month; (III) the Mortgage Loan
Seller shall, on the date of substitution, certify in writing to the Trustee and
the Master Servicer that the Qualified Substitute Mortgage Loan(s) meets all of
the requirements of the definition of "Qualified Substitute Mortgage Loan" in
the Pooling and Servicing Agreement and that the representations and warranties
set forth in Section 3.2 hereof are true and correct with respect to the
Mortgage Loan Seller and such Qualified Substitute Mortgage Loan(s) (which
includes a mortgage loan schedule describing such Qualified Substitute Mortgage
Loan(s) substantially in the form of Exhibit A)) and shall agree with the
Trustee in writing to be subject to the terms and provisions of this Agreement
with respect to such Qualified Substitute Mortgage Loan(s) as of the date of
substitution; (IV) scheduled payments of principal and interest due with respect
to any such Qualified Substitute Mortgage Loan after the related date of
substitution shall be part of the Trust Fund; and (V) scheduled payments of
principal and interest due with respect to any such Qualified Substitute
Mortgage Loan on or prior to the related date of substitution shall not be part
of the Trust Fund, and the Mortgage Loan Seller shall be entitled to receive
such payments promptly following receipt thereof by the Master Servicer as the
agent of the Trustee.
It is understood and agreed that the obligations of the Mortgage
Loan Seller set forth in this Section 3.3(b) to cure or repurchase or substitute
for a Defective Mortgage Loan constitute the sole remedies available to the
Purchaser and its successors and assigns respecting a Defective Mortgage Loan.
Upon any such repurchase or substitution of a Mortgage Loan by the Mortgage Loan
Seller, the Purchaser shall execute and deliver (or shall cause the Trustee to
execute and deliver) such instruments of transfer or assignment presented to it
by the Mortgage Loan Seller, in each case without recourse, as shall be
necessary to vest in the Mortgage Loan Seller the legal and beneficial ownership
of such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto) and the related rights
under each agreement assigned pursuant to Section 3.7 hereof, and shall deliver
the related Mortgage File to the Mortgage Loan Seller or its designee after
receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b) with respect to
a Defective Mortgage Loan, no provision of this Agreement shall be interpreted
as limiting (or otherwise be deemed to limit) the Purchaser's right to pursue
any remedies it may have under
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this Agreement, in equity or at law, in connection with any breach by the
Mortgage Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the assignment by
the Purchaser to the Trustee, as trustee under the Pooling and Servicing
Agreement, for the benefit of the Certificateholders, of the representations and
warranties contained herein and of the obligation of the Mortgage Loan Seller to
cure or repurchase Defective Mortgage Loans pursuant to this Section. The
Trustee or its designee may enforce such obligation as provided in Section 5.3
hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees that,
pursuant to Section 2.03(b) of the Pooling and Servicing Agreement, the Master
Servicer and the Special Servicer (in the case of Specially Serviced Mortgage
Loans) have the right, for the benefit of the Certificateholders, to enforce the
obligations of the Mortgage Loan Seller under this Section 3.3. The Master
Servicer and the Special Servicer, as the case may be, shall be reimbursed for
the reasonable costs of such enforcement in accordance with the Pooling and
Servicing Agreement.
3.4. [Intentionally Omitted].
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order to
perform any of its obligations or satisfy any of the conditions on its part to
be performed or satisfied pursuant to the Certificate Purchase Agreement and the
Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The Mortgage
Loan Seller agrees to execute and deliver such instruments and take such actions
as the Purchaser may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement and to
effectuate the securitization of the Mortgage Loans pursuant to the Pooling and
Servicing Agreement and to carry out its obligations under the Pooling and
Servicing Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, sells, transfers, assigns, delivers, sets-over and
conveys to the Purchaser all the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans pursuant to each agreement between
the Mortgage Loan Seller and the originators of the Mortgage Loans (where such
originators are Persons other than the Mortgage Loan Seller) pursuant to which
the Mortgage Loan Seller acquired rights in such Mortgage Loan (which agreements
are set forth on Schedule II attached hereto), including, without limitation,
all of the Mortgage Loan Seller's right, title and interest in any claims,
insurance policies, escrow accounts, demands, causes of action and any other
collateral arising out of and/or executed and/or delivered in or to, together
with any other documents or instruments executed and/or delivered in connection
with or otherwise related to the Mortgage Loans, without recourse,
representation or warranty except as set forth herein.
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ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage File shall be delivered to and held by the Trustee on
behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as Exhibit A;
(iii) an officer's certificate from the Mortgage Loan Seller dated
as of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Willkie Farr & Gallagher, counsel to the Mortgage
Loan Seller, substantially in the form attached hereto as Exhibit C;
(v) such other opinions of counsel as the Mortgage Loan Seller, the
Depositor or the Underwriters may require;
(vi) the Other Mortgage Loan Purchase Agreements are duly executed
and delivered;
(vii) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the ratings from Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc.
("Standard & Poor's") and Duff & Phelps Credit Rating Co. ("DCR") set
forth in Clause (viii) of this Section 4.1(b);
(viii) Letters from Standard & Poor's and DCR showing the following
ratings: for (i) the Class A-1 and Class A-2 Certificates, a "AAA" rating
from each of
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Standard & Poor's and DCR, (ii) the Class B Certificates, a "AA" rating
from each of Standard & Poor's and DCR, (iii) the Class C Certificates, a
"A" rating from each of Standard & Poor's and DCR, (iv) the Class D
Certificates, a "A-" rating from each of Standard & Poor's and DCR, (v)
the Class E Certificates, a "BBB" rating from each of Standard & Poor's
and DCR, (vi) the Class F Certificates, a "BBB-" rating from each of
Standard & Poor's and DCR, (vii) the Class IO Certificates, a "AAAr" and
"AAA" rating from Standard & Poor's and DCR, respectively, (viii), the
Class G Certificates, a "BB" rating from each of Standard & Poor's and
DCR, (ix) the Class H Certificates, a "B" rating from each of Standard &
Poor's and DCR, and (x) the Class J Certificates, a "B-" rating from each
of Standard & Poor's and DCR.
(ix) a letter from the independent accounting firm of Deloitte &
Touche LLP in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans as set forth in the Prospectus
and the Prospectus Supplement and certain information regarding the
Certificates as set forth in the Prospectus and the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The obligations of
the Mortgage Loan Seller under this Agreement shall be subject to the
satisfaction, on the Closing Date, of the Purchaser's compliance with all of the
Purchaser's obligations under this Agreement.
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ARTICLE V.
MISCELLANEOUS
5.1. Costs. If, pursuant to Section 2.2, the amounts deducted by the
Purchaser in respect of the Mortgage Loan Seller's Allocable Share of
transaction expenses from the purchase price of the Mortgage Loans are
subsequently determined to be less than or greater than the actual amounts owed
to the Purchaser by the Mortgage Loan Seller with respect thereto, the Mortgage
Loan Seller shall promptly reimburse the Purchaser or its designee for the
amount of such deficiency, or the Purchaser shall refund, or cause to be
refunded, to the Mortgage Loan Seller the amount of such excess, as the case may
be.
5.2. Indemnification and Contribution: (a) The Mortgage Loan Seller
shall indemnify and hold harmless the Purchaser and the Underwriters, the
directors, officers, employees and agents of the Purchaser and the Underwriters,
and each person who controls the Purchaser and the Underwriters within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus Supplement dated October 15, 1999
(the "Preliminary Prospectus Supplement"), the Prospectus Supplement, the
Memorandum, the Term Sheet, or in any amendment thereof or supplement thereto
(such amendment or supplement which has been reviewed by the Mortgage Loan
Seller) (collectively, the "Disclosure Documents"), or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, but only to the
extent such untrue statement, alleged untrue statement, omission or alleged
omission arises out of or is based upon any information provided by or on behalf
of the Mortgage Loan Seller to the Purchaser or the Underwriters with respect to
the Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale of such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained in such Preliminary
Prospectus Supplement which was the basis of any such claim was corrected in the
Prospectus Supplement and provided, further, that the indemnification provided
by this Section 5.2 shall not apply to the extent that
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such untrue statement or omission was made as a result of an error in (i) the
manipulation, (ii) any calculations based upon, or (iii) any aggregation (other
than an aggregation made by the Mortgage Loan Seller or an aggregation contained
in tabular information provided by the Mortgage Loan Seller) of, the information
regarding the Mortgage Loans, the related Mortgagor and the related Mortgaged
Properties with comparable information relating to the Other Mortgage Loans
conveyed by other mortgage loan sellers. This indemnity agreement will be in
addition to any liability which the Mortgage Loan Seller may otherwise have. For
all purposes of this Agreement, and notwithstanding anything herein contained to
the contrary, the Mortgage Loan Seller Information includes, and is limited to,
(i) the representations and warranties of the Mortgage Loan Seller set forth in
Section 3.2 herein, (ii) summaries of the individual Mortgage Loans and any
letters, certifications and other materials furnished to the Purchaser by the
Mortgage Loan Seller relating to the Mortgage Loans, (iii) reports of
environmental assessments of the related Mortgaged Properties furnished to the
Purchaser by the Mortgage Loan Seller relating to the Mortgage Loans, (iv)
reports of site inspections of the related Mortgaged Properties furnished to the
Purchaser by the Mortgage Loan Seller relating to the Mortgage Loans, (v) all
information and documentation relating to the Mortgage Loans and included in the
investor and Rating Agencies due diligence files and any documents or
information relating to the Mortgage Loans and provided by the Mortgage Loan
Seller or any of its affiliates to potential investors, including but not
limited to Mortgage Loan legal, underwriting and servicing documents and
information, (vi) the information regarding the Mortgage Loans, property
managers, underwriting standards of the Mortgage Loan Seller and the Mortgage
Loan Seller set forth in the Disclosure Documents, and (vii) any computer
diskettes, computer tapes and/or other electronic media furnished to the
Purchaser by the Mortgage Loan Seller relating to the Mortgage Loans containing
(A) the information on the Mortgage Loan Schedule, and (B) information regarding
the Mortgage Loans provided by the Mortgage Loan Seller to the Depositor or any
Underwriter and used in preparing Computational Materials (as such term is
defined in the no-action letter issued by the staff of the Securities and
Exchange Commission (the "SEC"), dated May 20, 1994 to Kidder, Peabody
Acceptance Corporation I), Collateral Term Sheets, ABS Term Sheets, and/or
Structural Term Sheets (as such terms are defined in the no-action letter issued
by the SEC, dated February 17, 1995 to the Public Securities Association).
(b) The Purchaser shall indemnify and hold harmless the Mortgage
Loan Seller, its directors, officers, employees and agents, and each person, if
any, who controls the Mortgage Loan Seller within the meaning of either the 1933
Act or the 1934 Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Disclosure Documents, any Computational Materials, Collateral Term Sheets, ABS
Term Sheets, and/or Structural Term Sheets, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, except to the extent the
such untrue statement, alleged untrue statement, omission or alleged omission is
based
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upon the Mortgage Loan Seller Information, and the Purchaser shall reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5.2 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5.2, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 5.2, except to the extent that it has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 5.2. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party for
expenses incurred by the indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel
(together with one local counsel, if applicable), approved by the Purchaser in
the case of subsection (a) above, representing the indemnified parties under
subsection (a) above who are parties to such action), (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes
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the defense of any proceeding, it shall be entitled to settle such proceeding
with the consent of the indemnified party of parties in connection with all
claims which have been asserted against the indemnified party or parties in such
proceeding by the other parties to such settlement, and shall be entitled to
settle such proceeding without the consent of the indemnified party or parties
so long as such settlement (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section 5.2 shall
for any reason be unavailable in accordance with its terms to an indemnified
party under this Section 5.2, then the Mortgage Loan Seller and the Purchaser
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above, in such proportion as is appropriate to reflect (i) the
relative benefits received by the Mortgage Loan Seller on the one hand and the
Purchaser on the other from the purchase and sale of the Mortgage Loans and the
offering of the Certificates and (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above, but
also to reflect the relative fault of the Mortgage Loan Seller on the one hand
and the Purchaser on the other in connection with the statement or omission that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Purchaser on the one hand and the Mortgage Loan Seller on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Certificates (before deducting expenses but net of underwriting discounts
and commissions) received by the Purchaser bear to the total net proceeds
received by the Mortgage Loan Seller with respect to the sale of the Mortgage
Loans (before deducting expenses). The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Mortgage Loan Seller or the Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Mortgage Loan
Seller and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were to be determined by per capita
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d) subject to the limitations therein
provided under subsection (c). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit
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of, and may be enforced by or on behalf of, the Trustee and the Holders of
Certificates to the same extent that the Purchaser has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein, and all such
representations and warranties shall survive delivery of the Mortgage Files to
the Trustee until the termination of the Pooling and Servicing Agreement.
Section 5.2 of this Agreement shall survive delivery of the Mortgage Files to
the Trustee and remain in full force and effect after the termination or
cancellation of this Agreement.
5.4. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York (without regard
to conflicts of laws principles), and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws, except
that the parties intend that the provisions of 5-1401 of the New York General
Obligations Law shall apply to this Agreement.
5.6. Modifications. (a) Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(b) This Agreement may not be changed in any manner which would have
a material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
(c) This Agreement may be executed in any number of counterparts,
each of which shall, for all purposes, be deemed to be an original and all of
which shall together constitute but one and the same instrument.
5.7. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at Merrill Lynch
Mortgage Investors Inc., World Financial Center, New York, New York 10281,
Attention: Bruce L. Ackerman, telecopy number: (212) 449-7684; or, if sent to
the Mortgage Loan Seller, will be mailed, delivered or transmitted by facsimile
and confirmed to it at Merrill Lynch Mortgage Capital, Inc., 100 Church Street,
18th Floor, New York, New York 10080-6518, Attention: Andrea Balkan, telecopy
number: (212) 652-7559, with a copy to Merrill Lynch, 100 Vesey Street, World
Financial Center, North Tower, 12th Floor, New York, New York 10281, Attention:
Michael McGovern, telecopy number: (212) 446-0265.
5.8. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, such covenants,
agreements, provisions or terms shall
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be deemed severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
5.9. Confirmation of Intent. It is the express intent of the parties
hereto that the conveyance contemplated by this Agreement be, and be treated for
all purposes as, a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Mortgage Loan Seller to secure a debt or other obligation
of the Mortgage Loan Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to continue to be property of
the Mortgage Loan Seller then (a) this Agreement shall also be deemed to be a
security agreement under applicable law; (b) the transfer of the Mortgage Loans
provided for herein shall be deemed to be a grant by the Mortgage Loan Seller to
the Purchaser of a first priority security interest in all of the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property; (c) the possession by the
Purchaser or any successor thereto of the related Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser or any successor thereto for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof shall also be deemed to be an assignment of any
security interest created hereby.
20
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
MERRILL LYNCH MORTGAGE INVESTORS INC.,
as Purchaser
By: /s/ Michael M. McGovern
----------------------------
Name: Michael M. McGovern
Title: Authorized Signatory
MERRILL LYNCH MORTGAGE
CAPITAL, INC., as Mortgage Loan Seller
By: /s/ Michael M. McGovern
----------------------------
Name: Michael M. McGovern
Title: Authorized Signatory
S-1
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Mortgage Loan Schedule MLMI 1999-C1
<TABLE>
<CAPTION>
Property Property
Control No. Name Type Address City
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ML-100 954-960 Chapel Street Mixed 954-960 Chapel Street New Haven
ML-101 1100 W. Ewing Street Industrial 1100 - 1120 W. Ewing St. Seattle
ML-103 Creekside Apartments Multifamily 7501 Chesterfield Dallas
ML-104 Equivest Industrial Center Industrial 500 Washington Street Norristown
ML-106 Palm Terrace Estates Mobile Home Park 2711 Mar Vista Drive Aptos
ML-107 Potomac Heights Apts Multifamily 1001 Palmer Road Fort Washington
ML-108 585-591-597 Prospect Place Apts. Multifamily 585-591-597 Prospect Place Brooklyn
ML-109 RCA - Waterford Apartments Multifamily 900 East Randol Mill Road Arlington
ML-110 Moulton Plaza Retail 28083 Moulton Parkway Laguna Niguel
ML-111 Fairways Apartments Multifamily 1450 N Highway 360 Grand Prairie
ML-112 Hempstead Village Commons Retail 300 Peninsula Boulevard Hempstead
ML-114 247 and 251-253 West 34th St. Retail 247 and 251-253 West 34th St. New York
ML-115 9033 Wilshire Medical Bldg Mixed 9033 Wilshire Blvd Beverly Hills
ML-116 Canyon Crest Village Apts Multifamily 5200 Chicago Avenue Riverside
ML-117 Pond View Corporate Center Office 74 & 76 Batterson Park Rd Farmington
ML-124 Saw Mill Multifamily 6900 Saw Mill Village Drive Columbus
ML-125 Spring Valley Multifamily 37850 Spring Lane Farmington Hills
ML-126 Hampton Point Multifamily 3340 Hampton Point Drive Silver Spring
ML-128 Hampton Inn O'Hare Hospitality 3939 N. Mannheim Road Schiller Park
ML-129 Tanglewood Apartments Multifamily 2217 Tanglewood Drive Hammond
ML-131 Milford Chase/Milford Hunt Multifamily See Below Milford
ML-131a Milford Chase Multifamily 68 W. Main St. Milford
ML-131b Milford Hunt Multifamily 260 W. River Road Milford
ML-132 Granada Self Storage Self Storage 201 W. Stassney Lane West Austin
ML-134 2551 Tellabs Dr. Building Industrial 2551 Tellabs Dr. Round Rock
ML-135 Avis Rent-A-Car Other 68-70 East 11th Street New York
ML-136 Breckenridge Farms Retail Blue Lake Blvd. & Pole Line Road Twin Falls
ML-137 Ocean Mist Resort Hospitality 97 South Shore Drive South Yarmouth
ML-138 Sea Crest Oceanfront Resort & Hospitality 350 Quaker Road North Falmouth
Conference Center
ML-139 Dobson Guadalupe Plaza Retail 2039 West Guadalupe Road Mesa
ML-140 Eldorado Village Phase I Retail 5100 Eldorado Villiage Pkwy McKinney
ML-143 Lambda Building Industrial 515 Broad Hollow Road Melville
ML-144 MicroSemi Corp. Building Industrial 3101 W. Segerstrom Avenue Santa Ana
ML-145 Office Depot - Newport News Retail 11971 Jefferson Avenue Newport News
ML-147 Quail Park IV Office 2810 & 2820 W. Charleston Blvd. Las Vegas
ML-148 Torrey Hills Corporate Centre Office 11250 El Camino Real San Diego
ML-151 57-13 49th Street (Maspeth) Industrial 57-13 49th Street Maspeth
ML-152 Augusta Office Building Office 1502 Augusta Houston
ML-154 Woodgate Apartments Multifamily 1468 Enfield St. Enfield
ML-156 College Square Retail SWC Alondra Blvd. & Studebaker Road Cerritos
<CAPTION>
Property Cut-Off Date P&I Payment Remaining
Control No. Name State Zip Code Balance (monthly) Gross Rate Term (mos)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street CT 06510 1,096,788.55 9,719.51 9.500% 116
ML-101 1100 W. Ewing Street WA 98119 8,269,850.45 66,834.16 8.375% 116
ML-103 Creekside Apartments TX 75237 8,503,715.46 60,267.84 7.350% 98
ML-104 Equivest Industrial Center PA 19401 1,270,192.26 10,180.78 8.520% 115
ML-106 Palm Terrace Estates CA 95003 797,997.58 5,812.13 7.780% 116
ML-107 Potomac Heights Apts MD 20744 26,086,863.88 175,444.66 6.977% 103
ML-108 585-591-597 Prospect Place Apts. NY 11238 1,317,108.64 10,367.66 8.040% 114
ML-109 RCA - Waterford Apartments TX 76011 7,488,419.99 53,345.09 7.430% 65
ML-110 Moulton Plaza CA 92677 2,538,293.34 19,296.04 8.230% 116
ML-111 Fairways Apartments TX 75050 9,507,209.95 65,580.06 7.080% 63
ML-112 Hempstead Village Commons NY 11550 8,907,379.25 64,563.37 7.730% 116
ML-114 247 and 251-253 West 34th St. NY 10001 6,982,314.24 58,772.17 8.875% 117
ML-115 9033 Wilshire Medical Bldg CA 90211 6,879,599.58 51,469.16 8.068% 117
ML-116 Canyon Crest Village Apts CA 92507 8,123,381.94 59,492.91 7.830% 139
ML-117 Pond View Corporate Center CT 06032 20,930,804.16 152,701.88 7.790% 115
ML-124 Saw Mill OH 43235 12,460,914.75 87,401.81 7.500% 115
ML-125 Spring Valley MI 48331 11,962,178.22 83,659.37 7.470% 91
ML-126 Hampton Point MD 20904 18,442,153.82 129,354.68 7.500% 115
ML-128 Hampton Inn O'Hare IL 60176 4,986,533.36 36,404.75 7.500% 117
ML-129 Tanglewood Apartments IN 46323 15,969,297.09 116,341.44 7.790% 117
ML-131 Milford Chase/Milford Hunt CT 06460 2,922,490.48 21,466.23 7.875% 117
ML-131a Milford Chase CT 06460
ML-131b Milford Hunt CT 06460
ML-132 Granada Self Storage TX 78745 1,844,916.12 14,951.82 8.420% 117
ML-134 2551 Tellabs Dr. Building TX 78664 6,252,260.03 47,290.46 8.190% 118
ML-135 Avis Rent-A-Car NY 10003 2,393,500.56 19,528.63 8.500% 117
ML-136 Breckenridge Farms ID 83301 4,643,850.89 34,086.67 7.875% 118
ML-137 Ocean Mist Resort MA 02664 2,495,292.30 20,305.33 8.480% 118
ML-138 Sea Crest Oceanfront Resort & MA 02556 11,777,779.63 95,841.16 8.480% 118
Conference Center
ML-139 Dobson Guadalupe Plaza AZ 85202 3,216,174.26 24,752.12 8.375% 118
ML-140 Eldorado Village Phase I TX 75070 2,096,486.48 16,144.79 8.375% 117
ML-143 Lambda Building NY 11747 9,338,998.65 72,176.12 8.420% 118
ML-144 MicroSemi Corp. Building CA 92704 2,022,041.41 15,574.20 8.390% 119
ML-145 Office Depot - Newport News VA 23606 2,056,000.00 15,989.14 8.500% 120
ML-147 Quail Park IV NV 89107 11,004,848.03 81,805.04 8.000% 117
ML-148 Torrey Hills Corporate Centre CA 92130 3,520,816.39 27,109.33 8.380% 118
ML-151 57-13 49th Street (Maspeth) NY 11378 2,394,997.00 19,521.99 8.500% 118
ML-152 Augusta Office Building TX 77057 4,165,045.53 32,054.77 8.375% 118
ML-154 Woodgate Apartments CT 06082 6,491,404.44 47,648.04 7.875% 118
ML-156 College Square CA 90703 18,825,623.16 139,581.24 7.980% 118
<CAPTION>
Property Remaining Maturity Date Ground Balloon/Hyperam/ Sub
Control No. Name Amort (mos) ARD Date Lease Fully Amort Servicing fees
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street 296 7/1/09 No Balloon incl. In Master
ML-101 1100 W. Ewing Street 296 7/1/09 No Balloon incl. In Master
ML-103 Creekside Apartments 338 1/1/08 No Balloon incl. In Master
ML-104 Equivest Industrial Center 319 6/1/09 No Balloon incl. In Master
ML-106 Palm Terrace Estates 356 7/1/09 No Balloon incl. In Master
ML-107 Potomac Heights Apts 343 6/1/08 No Hyperam incl. In Master
ML-108 585-591-597 Prospect Place Apts. 294 5/1/09 No Balloon incl. In Master
ML-109 RCA - Waterford Apartments 341 4/1/05 No Balloon incl. In Master
ML-110 Moulton Plaza 356 7/1/09 No Balloon incl. In Master
ML-111 Fairways Apartments 339 2/1/05 No Balloon incl. In Master
ML-112 Hempstead Village Commons 356 7/1/09 No Balloon incl. In Master
ML-114 247 and 251-253 West 34th St. 297 8/1/09 No Balloon incl. In Master
ML-115 9033 Wilshire Medical Bldg 357 8/1/09 No Balloon incl. In Master
ML-116 Canyon Crest Village Apts 355 6/1/11 No Balloon incl. In Master
ML-117 Pond View Corporate Center 355 6/1/09 No Balloon incl. In Master
ML-124 Saw Mill 355 6/1/09 No Balloon 0.03
ML-125 Spring Valley 355 6/1/07 No Balloon 0.03
ML-126 Hampton Point 355 6/1/09 No Balloon 0.03
ML-128 Hampton Inn O'Hare 321 8/1/09 No Balloon incl. In Master
ML-129 Tanglewood Apartments 357 8/1/09 No Balloon incl. In Master
ML-131 Milford Chase/Milford Hunt 357 8/1/09 See below Balloon incl. In Master
ML-131a Milford Chase
ML-131b Milford Hunt
ML-132 Granada Self Storage 297 8/1/09 No Balloon incl. In Master
ML-134 2551 Tellabs Dr. Building 358 9/1/09 No Balloon incl. In Master
ML-135 Avis Rent-A-Car 297 8/1/09 No Balloon incl. In Master
ML-136 Breckenridge Farms 358 9/1/09 No Balloon incl. In Master
ML-137 Ocean Mist Resort 298 9/1/09 No Balloon incl. In Master
ML-138 Sea Crest Oceanfront Resort & 298 9/1/09 No Balloon incl. In Master
Conference Center
ML-139 Dobson Guadalupe Plaza 358 9/1/09 No Balloon incl. In Master
ML-140 Eldorado Village Phase I 357 8/1/09 No Balloon incl. In Master
ML-143 Lambda Building 358 9/1/09 No Balloon incl. In Master
ML-144 MicroSemi Corp. Building 359 10/1/09 No Balloon incl. In Master
ML-145 Office Depot - Newport News 360 11/1/09 No Balloon incl. In Master
ML-147 Quail Park IV 357 8/1/09 No Balloon incl. In Master
ML-148 Torrey Hills Corporate Centre 358 9/1/09 No Balloon incl. In Master
ML-151 57-13 49th Street (Maspeth) 298 9/1/09 No Balloon incl. In Master
ML-152 Augusta Office Building 358 9/1/09 No Balloon incl. In Master
ML-154 Woodgate Apartments 358 9/1/09 No Balloon incl. In Master
ML-156 College Square 358 9/1/09 No Balloon incl. In Master
<CAPTION>
Property Master Mortgage Interest Cross
Control No. Name Servicing fees Loan Seller Subservicer Defeasance Accrual defaulted
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
ML-100 954-960 Chapel Street 0.070 MLMC ORIX Yes Actual/360 no
ML-101 1100 W. Ewing Street 0.070 MLMC ORIX Yes Actual/360 no
ML-103 Creekside Apartments 0.070 MLMC ORIX Actual/360 no
ML-104 Equivest Industrial Center 0.070 MLMC ORIX Yes Actual/360 no
ML-106 Palm Terrace Estates 0.070 MLMC ORIX Yes Actual/360 no
ML-107 Potomac Heights Apts 0.070 MLMC ORIX Yes Actual/360 no
ML-108 585-591-597 Prospect Place Apts. 0.070 MLMC ORIX Yes Actual/360 no
ML-109 RCA - Waterford Apartments 0.070 MLMC ORIX Actual/360 no
ML-110 Moulton Plaza 0.070 MLMC ORIX Yes Actual/360 no
ML-111 Fairways Apartments 0.070 MLMC ORIX Actual/360 no
ML-112 Hempstead Village Commons 0.070 MLMC ORIX Yes Actual/360 no
ML-114 247 and 251-253 West 34th St. 0.070 MLMC ORIX Yes Actual/360 no
ML-115 9033 Wilshire Medical Bldg 0.070 MLMC ORIX Yes Actual/360 no
ML-116 Canyon Crest Village Apts 0.070 MLMC ORIX Yes Actual/360 no
ML-117 Pond View Corporate Center 0.070 MLMC ORIX Actual/360 no
ML-124 Saw Mill 0.000 MLMC Chase Yes Actual/360 no
ML-125 Spring Valley 0.000 MLMC Chase Yes Actual/360 no
ML-126 Hampton Point 0.000 MLMC Chase Yes Actual/360 no
ML-128 Hampton Inn O'Hare 0.070 MLMC ORIX Yes Actual/360 no
ML-129 Tanglewood Apartments 0.070 MLMC ORIX Yes Actual/360 no
ML-131 Milford Chase/Milford Hunt 0.070 MLMC ORIX Actual/360 no
ML-131a Milford Chase
ML-131b Milford Hunt
ML-132 Granada Self Storage 0.070 MLMC ORIX Yes Actual/360 no
ML-134 2551 Tellabs Dr. Building 0.070 MLMC ORIX Actual/360 no
ML-135 Avis Rent-A-Car 0.070 MLMC ORIX Yes Actual/360 no
ML-136 Breckenridge Farms 0.070 MLMC ORIX Yes Actual/360 no
ML-137 Ocean Mist Resort 0.070 MLMC ORIX Yes Actual/360 no
ML-138 Sea Crest Oceanfront Resort & 0.070 MLMC ORIX Yes Actual/360 no
Conference Center
ML-139 Dobson Guadalupe Plaza 0.070 MLMC ORIX Yes Actual/360 no
ML-140 Eldorado Village Phase I 0.070 MLMC ORIX Yes Actual/360 no
ML-143 Lambda Building 0.070 MLMC ORIX Yes Actual/360 no
ML-144 MicroSemi Corp. Building 0.070 MLMC ORIX Yes Actual/360 no
ML-145 Office Depot - Newport News 0.070 MLMC ORIX Yes Actual/360 no
ML-147 Quail Park IV 0.070 MLMC ORIX Yes Actual/360 no
ML-148 Torrey Hills Corporate Centre 0.070 MLMC ORIX Yes Actual/360 no
ML-151 57-13 49th Street (Maspeth) 0.070 MLMC ORIX Yes Actual/360 no
ML-152 Augusta Office Building 0.070 MLMC ORIX Actual/360 no
ML-154 Woodgate Apartments 0.070 MLMC ORIX Yes Actual/360 no
ML-156 College Square 0.070 MLMC ORIX Yes Actual/360 no
</TABLE>
A-1
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE OF Merrill Lynch Mortgage Capital, Inc.
In connection with the sale, assignment and transfer of certain
mortgage loans (collectively, the "Mortgage Loans") by Merrill Lynch Mortgage
Capital, Inc. (the "Mortgage Loan Seller") to Merrill Lynch Mortgage Investors
Inc. (the "Purchaser") pursuant to the Mortgage Loan Purchase Agreement dated as
of November 1, 1999 (the "Mortgage Loan Purchase Agreement") between the
Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Purchase Agreement are true and correct in
all material respects at and as of the date hereof with the same effect as
if made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the Mortgage
Loan Purchase Agreement and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or
satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the [__]th day of [__] 1999.
Merrill Lynch Mortgage Capital, Inc.
By:_____________________________________
Name:
Title:
B-1
<PAGE>
EXHIBIT C
[Letterhead of [COUNSEL]]
[CLOSINGDATE]
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase Agreement dated as of November 1, 1999 between
Merrill Lynch Mortgage Investors Inc. and Merrill Lynch Mortgage Capital,
Inc. (the "Agreement")
Ladies and Gentlemen:
I am the counsel to Merrill Lynch Mortgage Capital, Inc., a Delaware
corporation (the "Company"), and, in such capacity, I am familiar with the
affairs of the Company.
I am providing this opinion in connection with the sale by the
Company to Merrill Lynch Mortgage Investors Inc. of various commercial and
multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase Agreement (the "Agreement").
Terms used herein, but not otherwise defined herein, shall have the meanings
ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of ______, and I express no
opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
C-1
<PAGE>
Based on the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, is duly
qualified as a [foreign] corporation in good standing in the State of New
York, with full corporate power and authority to own its assets and
conduct its business, to execute, deliver and perform the Agreement and
all the transactions contemplated thereby, including but not limited to,
the power and authority to sell, assign and retransfer the Mortgage Loans
in accordance with the Agreement and the Company has taken all necessary
action to authorize the execution, delivery and performance of the
Agreement by it, and the Agreement has been duly authorized, executed and
delivered by it.
2. The Agreement and all of the obligations of the Company under the
Agreement are valid, legal and binding obligations of the Company
enforceable against the Company in accordance with the terms of the
Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by public policy considerations,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of the
provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company and
the performance of its obligations under the Agreement will not conflict
with any provision of any law or regulation to which the Company is
subject, or conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any of the Company's
organizational documents or, to my knowledge, any agreement or instrument
to which the Company is a party or by which it is bound, or any order or
decree applicable to the Company, result in the creation or imposition of
any lien on any of the Company's assets or property, in each case which
would materially and adversely affect the ability of the Company to carry
out the transactions contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in any
court or by or before any other government agency or instrumentality which
would materially and adversely affect the validity of the Mortgage Loans
or the ability of the Company to carry out the transactions contemplated
by the Agreement.
5. To my knowledge, the Company is not in default with respect to
any order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Agreement.
C-2
<PAGE>
6. To my knowledge, no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Company or compliance by the Company with
the Agreement or the consummation of the transactions contemplated by the
Agreement, other than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees
hereof in connection with the transaction referred to herein. This letter may
not be relied upon, used, quoted, circulated or otherwise referred to by any
other person or for any other purpose without my prior written approval. This
opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
<PAGE>
Schedule A
Merrill Lynch Mortgage Capital, Inc.
100 Church Street, 18th Floor
New York, New York 10080-6518
ORIX Real Estate Capital Markets, LLC
1717 Main Street, Suite 1400
Dallas, Texas 75201
Merrill Lynch Mortgage Investors Inc.
World Financial Center
New York, New York 10281
PaineWebber Incorporated
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Duff & Phelps Credit Rating Co.
17 State Street, 12th Fl.
New York, New York 10004
Standard & Poor's
55 Water Street, 41st Fl.
New York, New York 10041
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21004
C-4
<PAGE>
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO EACH MORTGAGE LOAN
The following are exceptions to the representations and warranties made by
the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Schedule I of this Agreement. The item number indicates the subsection number
where such representation or warranty appears in Schedule I of this Agreement.
<TABLE>
<CAPTION>
REP ML LOAN NAME EXCEPTION
LOAN NO
<S> <C> <C> <C>
XI SINGLE PURPOSE BORROWER 1% Initial Pool Balance = $5,295,980
151 57-13 49th Street Organizational documents do not require 1st Tier SPE
100 954-960 Chapel St. Organizational documents do not require 1st Tier SPE
135 Avis Rent a Car Organizational documents do not require 1st Tier SPE
132 Granada Self Storage Organizational documents do not require 1st Tier SPE
144 Microsemi Organizational documents do not require 1st Tier SPE
131a Milford/Chase Organizational documents do not require 1st Tier SPE
131b Milford/Hunt Organizational documents do not require 1st Tier SPE
145 Office Depot Organizational documents do not require 1st Tier SPE
106 Palm Terrace Organizational documents do not require 1st Tier SPE
108 Prospect Place Organizational documents do not require 1st Tier SPE
104 Equivest Organizational documents do not require 1st Tier SPE
XV EXISTING INDEBTEDNESS
117 Pond View Subordinate Unsecured Debt
107 Potomac Subordinate Mezz Debt to COMIT
109 Waterford Subordinate Mezz Debt to MLMC
111 Fairways Subordinate Mezz Debt to MLMC
XVI NO ADDITIONAL INDEBTEDNESS
107 Pond View Subordinate Unsecured Debt & Future Unsecured Debt allowed
109 Potomac Subordinate Mezz Debt to COMIT
111 Waterford Subordinate Mezz Debt to MLMC
127 Fairways Subordinate Mezz Debt to MLMC
156 College Square Future Unsecured Debt allowed
151 57-13 49th Street Mortgage does not probibit additional debt (Section XII)
135 Avis Rent a Car Mortgage does not probibit additional debt (Section XII)
144 Microsemi Mortgage does not probibit additional debt (Section XII)
131a Milford/Chase Mortgage does not probibit additional debt (Section XII)
131b Milford/Hunt Mortgage does not probibit additional debt (Section XII)
106 Palm Terrace Mortgage does not probibit additional debt (Section XII)
108 Prospect Place Mortgage does not probibit additional debt (Section XII)
</TABLE>
D-1
<PAGE>
<TABLE>
<CAPTION>
REP ML LOAN NAME EXCEPTION
LOAN NO
<S> <C> <C> <C>
XVIII PROCEEDS FULLY DISBURSED
103 Creekside
109 Waterford
111 Fairways
XXXVI NON RECOURSE MORTGAGE LOAN
1st sentence
124 Associated Saw Mill
125 Associated Spring Valley
126 Associated Hampton Point
2nd sentence
104 Equivest Industrial
107 Potomac Heights
117 Pond View Corp Ctr
124 Associated Saw Mill
125 Associated Spring Valley
126 Associated Hampton Point
XLIII PERMANENT FINANCING
156 College Square
XLVII ENVIRONMENTAL ISSUES
103 Creekside
111 Fairways
109 Waterford
107 Potomac
LXII SERVICING
124 Saw Mill Associated Realty
125 Spring Valley Associated Realty
126 Hampton Point Associated Realty
LXIII BORROWER CONCENTRATION
124 Saw Mill Associated Realty
</TABLE>
D-2
<PAGE>
<TABLE>
<CAPTION>
REP ML LOAN NAME EXCEPTION
LOAN NO
<S> <C> <C> <C>
125 Spring Valley Associated Realty
126 Hampton Point Associated Realty
</TABLE>
D-3
<PAGE>
Schedule I
Schedule I
Mortgage Loan Seller's representations and warranties as to the Mortgage Loans
I-1
<PAGE>
Merrill Lynch
Schedule I
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is true, complete
and accurate in all material respects as of the Cut-off Date.
(ii) Representations and Warranties Remain True. The Mortgage Loan Seller
has not taken any action that would cause the representations and
warranties made by each Mortgagor under the related Mortgage Loan not
to be true. The Mortgage Loan Seller has no knowledge that the material
representations and warranties made by the Mortgagor in each Mortgage
Loan are not true in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller, Originator or Mortgagor.
Neither the Mortgage Loan Seller, nor, to the Mortgage Loan Seller's
best knowledge, (1) any originator other than the Mortgage Loan Seller
or (2) the Mortgagor, committed any fraudulent acts during the
origination process of any Mortgage Loan.
(iv) Legal, Prudent and Proper. (A) With respect to each Mortgage Loan that
the Mortgage Loan Seller originated, the origination of such Mortgage
Loan is in all material respects legal, proper and prudent in
accordance with customary industry standards utilized by prudent
institutional and commercial mortgage lenders and (B) to the best of
the Mortgage Loan Seller's knowledge, (1) the origination of each
Mortgage Loan purchased by the Mortgage Loan Seller and (2) the
servicing and collection of each Mortgage Loan is in all material
respects legal, proper and prudent in accordance with customary
industry standards utilized by prudent institutional and commercial
mortgage lenders or loan servicers as appropriate.
(v) Mortgage Loan Seller's Title to Mortgage Loans. Immediately prior to
the sale of the Mortgage Loan to the Depositor, the Mortgage Loan
Seller had good and marketable title to and was the sole owner and
holder of each Mortgage Loan, and the assignment validly transferred
its ownership of the Mortgage Loan, free and clear of any and all
liens, pledges and other encumbrances (other than the Mortgage Loan
Seller's obligation to repurchase defective Mortgage Loans). Each of
the Mortgage Note and the Mortgage is properly endorsed or assigned,
respectively, to the Purchaser (or the Trustee, as its designee) or in
blank (which the Trustee or its designee is authorized to complete and,
as applicable, to file in the appropriate filing office) and each such
endorsement or assignment, respectively, is genuine.
(vi) No Delinquency. No monthly payment of principal of or interest on any
Mortgage Loan has been more than 30 days delinquent since origination
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(without giving effect to any grace period) and as of the Cut-off Date
for such Mortgage Loan, no monthly payment of principal of or interest
on such Mortgage Loan is 30 or more days delinquent.
(vii) No Default. There is no material default, breach, violation or event of
acceleration existing under the related Mortgage or Mortgage Note, and
to the Mortgage Loan Seller's knowledge, there is no event (other than
payments due but not yet delinquent) which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a default, breach, violation or event of acceleration.
(viii) No Modification or Release. Since origination, such Mortgage Loan has
not been modified, altered, satisfied, canceled, subordinated or
rescinded, with the exception of any modification, alteration,
satisfaction, cancellation, subordination or rescission specifically
disclosed in a written instrument that (A) was entered into prior to
the Cut-off Date, (B) has been recorded in the applicable public
recording office if necessary to maintain the priority of the lien of
the related Mortgage and related Security Agreements, if any, and (C)
is being delivered to the Trustee or Custodian as part of the related
Mortgage File. No material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage, in each case,
in any manner which materially and adversely affects the use or
operation of the Mortgaged Property, the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage.
(ix) No Insolvency. To the knowledge of the Mortgage Loan Seller, neither
the Mortgagor nor any guarantor is a debtor in any state or federal
bankruptcy or insolvency proceeding or any regulatory proceeding.
(x) No Proceedings. To the knowledge of the Mortgage Loan Seller, as of the
Closing Date, there is no pending action, suit or proceeding,
arbitration or governmental investigation against a Mortgagor or
Mortgaged Property, an adverse outcome of which would materially and
adversely affect such Mortgagor's ability to perform under the related
Mortgage Loan.
(xi) Single-Purpose Borrower. (A) Except as set forth on Exhibit D attached
hereto, the Mortgagor is a single purpose entity, (B) the Mortgage Loan
Seller has no knowledge that the Mortgagor is not a single purpose
entity, and (C) the Mortgagor is organized under the laws of a state,
territory or district of the United States. For purposes of this
representation, "single-purpose entity" shall mean an entity, other
than an individual, the organizational documents of which limit its
purpose to owning and operating a single property or group of
properties, and provides that it shall not engage in any business
unrelated to such
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property and its financing, have any assets other than those related to
its interest in the related Mortgaged Property or its financing, or
have any indebtedness other than as permitted under the related
Mortgage Loan, and with respect to a Mortgagor of a Mortgage Loan in
excess of $15 million, provides that it shall maintain its own books,
records and accounts, in each case which are separate and apart from
the books, records and accounts of any other person, conduct its
business in its own name, not guarantee or assume the debts or
obligations of any other person, not commingle its assets or funds with
those of any other person, transact business with affiliates on an
arm's length basis and hold itself out as being a legal entity,
separate and apart from any other person.
(xii) Mortgagor Is The Sole Owner of Interest in Lease Payments. No person
other than the Mortgagor owns any interest in any payments due under
the leases relating to the Mortgaged Property that is superior to or of
equal priority with the Mortgage Loan Seller's interest therein.
(xiii) Defeasance; No REMIC Disqualification. With respect to any Mortgage
Loan that pursuant to the Mortgage Loan Documents can be defeased, (A)
the Mortgage Loan cannot be defeased within two years of the Closing
Date and such defeasance must otherwise comply with the REMIC
Provisions, (B) the Mortgagor can pledge only United States government
securities (within the meaning of section 2(a)(16) of the Investment
Company Act of 1940) as the substitute collateral, in an amount
sufficient to make all scheduled payments under the Mortgage Note when
due, as certified by a independent certified public accountant, and (C)
the Mortgagor can be required by the Master Servicer to establish that
the release of the lien is to facilitate the disposition of the
Mortgaged Property or is in connection with some other customary
commercial transaction and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real
estate mortgages.
(xiv) REMIC Qualification. The Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulation Section
1.860G-2(f)(2) that treats a defective obligation as a "qualified
mortgage" or any substantially similar successor provision) and any and
all Percentage Premiums and Yield Maintenance Charges constitute
"customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
(xv) Existing Indebtedness. Except as set forth on Exhibit D, there are no
subordinate or pari passu Mortgages encumbering the related Mortgaged
Property, no preferred equity interests held by the Mortgage Loan
Seller or mezzanine debt related to such Mortgaged Property.
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(xvi) No Additional Indebtedness. Except as set forth in Exhibit D, the
Mortgage Loan prohibits the related Mortgagor from mortgaging or
otherwise encumbering the Mortgaged Property and from carrying any
additional indebtedness except in connection with (A) trade debt and
equipment financings in the ordinary course of Mortgagor's business and
(B) liens arising by operation of law that are contested in accordance
with the terms of the Mortgage Loan.
(xvii) Annual Reports. The Mortgage Loan requires the related Mortgagor to
provide annual operating statements, rent rolls, and other information
that the holder of the Mortgage Loan may reasonably request in
connection with the related Mortgagor and the related Mortgaged
Property.
(xviii) Proceeds Fully Disbursed. Except as specified in Exhibit D, the
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder and the Mortgage Loan Seller
covenants that it will not make any future advances under the Mortgage
Loan to the related Mortgagor. No advance of funds (other than the
initial disbursement of proceeds) has been made by the Mortgage Loan
Seller, any affiliate or any third party originator to the related
Mortgagor (other than mezzanine debt that is set forth on Exhibit D)
and no funds have been received from or on behalf of any person other
than the related Mortgagor for, or on account of, payments due on the
Mortgage Loan.
(xix) No Negative Amortization. Other than the ARD Loans, which may have
negative amortization from and after their respective Anticipated
Repayment Dates, the Mortgage Loan does not provide for a shared
appreciation or equity participation feature, any other contingent or
additional interest feature or the negative amortization of interest.
(xx) Whole Loan. The Mortgage Loan is a whole loan and not a participating
interest in a mortgage loan. Neither Mortgage Loan Seller nor any
affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan other than contributions made
on or prior to the closing date.
(xxi) Cross-Collateralization. The Mortgage Loan is not cross-collateralized
with any mortgage loan that is not included in the Trust.
(xxii) Conditions for Releases of Mortgaged Property. Except in connection
with Mortgage Loans that are cross-collateralized and Mortgage Loans
that are secured by more than one Mortgaged Property, the Mortgage Loan
does not require the Mortgage Loan Seller to release any portion of the
related Mortgaged Property from the lien of the related Mortgage
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except upon (A) payment in full of all amounts due under the related
Mortgage Loan, (B) releases of unimproved out-parcels, (C) releases of
portions of the Mortgaged Property that will not have a material
adverse effect on the adequacy of the remaining collateral for the
Mortgage Loan or (D) substitution of government securities for such
Mortgaged Property in a defeasance complying with Treasury
Regulations Section 1.860G-2(a)(8).
(xxiii) Documents Valid. Each related Mortgage Note, Mortgage, Assignment of
Leases (if any) and other agreement executed in connection with each
Mortgage Loan is the legal, valid and binding obligation of the related
Mortgagor, enforceable in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxiv) Assignments of Leases Create First Priority Security Interest. Unless
the related Mortgaged Property is owner occupied, the Mortgage File for
such Mortgage Loan contains an Assignment of Leases, either as a
separate instrument or incorporated into the related Mortgage, which
creates in favor of the holder thereof a valid, collateral or first
priority assignment of, or a valid first priority security interest in,
certain rights under the related leases, subject only to a license
granted to the related Mortgagor to exercise certain rights and to
perform certain obligations of the lessor under such leases, including
the right to operate the related Mortgaged Property. Each related
assignment of Mortgage from the Mortgage Loan Seller to the Trustee and
any related reassignment of Assignment of Leases, if any, or assignment
of any other agreement executed in connection with each Mortgage Loan,
from the Mortgage Loan Seller to the Purchaser (or the Trustee as its
assignee) has been duly authorized, executed and delivered by the
Mortgage Loan Seller, is in recordable form, as appropriate, in order
to validly and effectively convey the Mortgage Loan Seller's interest
therein to the Purchaser (or the Trustee as its assignee) and
constitutes the legal, valid, binding and enforceable assignment from
the Mortgage Loan Seller to the Purchaser (or Trustee as its assignee)
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxv) Mortgages and Security Agreements Create First Lien. The Mortgage is a
valid and enforceable first lien on the related Mortgaged Property
subject only to (A) the lien of current real property taxes, ground
rents,
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water charges, sewer rents and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the related Mortgagor's ability to pay its obligations when they
become due or the value of the Mortgaged Property and (C) the
exclusions and exceptions (general and specific) set forth in a
lender's title insurance policy, none of which, individually or in the
aggregate, materially interferes with the current use of the related
Mortgaged Property or materially interferes with the security intended
to be provided by such Mortgage or with the related Mortgagor's ability
to pay its obligations when they become due or the value of the
Mortgaged Property. As of the date of origination of such Mortgage Loan
and as of the Closing Date, such Mortgaged Property is free and clear
of any mechanics' and materialmen's liens which are prior to or equal
with the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy. Any Security Agreement,
chattel mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a valid and
enforceable first lien on and first priority security interest in the
personal property described therein (including hotel revenues with
respect to a Mortgaged Property that is operated as a hotel), except as
such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxvi) No Defenses to Payment. The Mortgage Loan is not subject to any right
of rescission, set-off, abatement, diminution, valid counterclaim or
defense (except with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any Default Interest,
late charges, Prepayment Premiums and Yield Maintenance Charges)
including the defense of usury, available to the related Mortgagor with
respect to such Mortgage Note, Mortgage, Assignment of Leases and other
agreements.
(xxvii) Mortgage Loan Documents Comply With Law. The terms of each of the
Mortgage Loan Documents comply in all material respects with all
requirements of applicable local, state or federal law.
(xxviii) Customary Provisions. The related Mortgage contains customary and
enforceable (subject to bankruptcy, insolvency, moratorium, redemption
or other similar laws affecting creditors' rights generally or by
general principles of equity) provisions so as to render the rights and
remedies of
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the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, and there is no
exemption available to the Mortgagor which would interfere with such
right to foreclose (except as may be imposed by bankruptcy, insolvency,
moratorium, redemption or other similar laws affecting creditors'
rights generally or by general principles of equity).
(xxix) Mortgagor's Interest in Mortgaged Property. The interest of the related
Mortgagor in the related Mortgaged Property consists of a fee simple
estate and/or a leasehold estate in all of the real property
constituting a part of the Mortgaged Property.
(xxx) Recorded Instruments. The Mortgage has been properly recorded in the
applicable jurisdiction and the assignment of Mortgage for each
Mortgage Loan is in recordable form for the applicable jurisdiction and
constitute the legal, valid and binding assignment of such Mortgage
Loan. The full amount of the Mortgage has been recorded on each related
Mortgaged Property, and all applicable mortgage recording taxes have
been paid.
(xxxi) UCC Financing Statements. A Form UCC-1 financing statement has been
submitted for filing or recordation with respect to personal property
constituting a part of the related Mortgaged Property as to which a
security interest can be perfected by filing (including hotel revenues
with respect to a Mortgaged Property that is operated as a hotel), and
a copy of each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement has been executed by the Mortgage Loan Seller in
blank which the Trustee or its designee is authorized to complete and
to file in the filing office in which such financing statement was
filed (and but for the insertion of the name of the assignee and any
related filing information which is not yet available to the Mortgage
Loan Seller is in suitable form for filing).
(xxxii) Collateral. The Mortgage Note is not and has not been secured by any
collateral other than collateral covered by the related Mortgage, the
related Assignment of Leases (if any) and any other agreement executed
in connection with the origination of the Mortgage Loan.
(xxxiii) Borrower's Licenses and Permits. As of the date of origination of each
Mortgage Loan, and, to the Mortgage Loan Seller's knowledge, as of the
Cut-off Date, each related Mortgagor was in possession of all material
licenses, permits and other authorizations necessary and required by
all applicable laws for the conduct of its business and all such
licenses, permits and authorizations were valid and in full force and
effect.
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(xxxiv) No Usury Violation; Compliance with Law. The Mortgage Rate (exclusive
of any excess interest on an ARD Loan after the related Anticipated
Repayment Date and any Default Interest, late charges, Prepayment
Premiums and Yield Maintenance Charges) of each Mortgage Loan complied
as of the date of origination with, or is exempt from, applicable state
or federal laws, regulations and other requirements pertaining to
usury; and any and all other requirements of any federal, state or
local laws, including, without limitation, truth-in-lending, real
estate settlement procedures, equal credit opportunity or disclosure
laws, applicable to each Mortgage Loan have been complied with as of
the date of origination of each Mortgage Loan.
(xxxv) Acceleration Provisions. Each related Mortgage or loan agreement
contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the
holder of the Mortgage Loan, the related Mortgaged Property, or any
controlling interest therein in the Mortgagor, is directly or
indirectly transferred or sold (other than transfers for estate
planning purposes, other purposes where no change of control occurs or
such transfers which have been pre-approved to transferees which
otherwise have met the Mortgage Loan Seller's underwriting criteria) or
encumbered in connection with subordinate financing (other than any
indebtedness described in clauses (xv) and (xvi) above) and each
related Mortgage or loan agreement prohibits the pledge or encumbrance
of the Mortgaged Property without the consent of the holder of the
Mortgage Loan. The Mortgage or loan agreement requires the obligor to
pay all reasonable fees and expenses associated with securing the
consent of the holder of the Mortgage Loan.
(xxxvi) Non-Recourse Mortgage Loan. The Loan Documents for the Mortgage Loan
provide that such Mortgage Loan is non-recourse to the related parties
thereto except for certain acts including the fraud, willful misconduct
or material misrepresentation by the related Mortgagor and/or its
affiliates, in which case, except as specified in Exhibit D, either (A)
such Mortgage Loan shall become a recourse obligation of another
person, or (B) another person shall assume liability for any losses
incurred by the Mortgage Loan Seller or its assignee due to such acts.
Additionally, the Mortgage Loan Documents for the Mortgage Loan provide
that, except as specified in Exhibit D, another person shall assume
liability for any losses incurred by the Mortgage Loan Seller or its
assignee due to (1) the misapplication or misappropriation of rents,
insurance proceeds or condemnation awards, (2) acts of waste and (3)
breaches of any environmental covenants contained in the related
Mortgage Loan Documents.
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(xxxvii) Mortgages Secured by Deeds of Trust. With respect to each Mortgage
which is a deed of trust, a trustee which, to the knowledge of the
Mortgage Loan Seller is duly qualified under applicable law to serve
as such, has been properly designated and currently so serves and is
named in the deed of trust or has been substituted in accordance with
applicable law, and except in connection with a trustee's sale after
a default by the related Mortgagor or in connection with the release
of the related Mortgaged Property, no fees are or will become payable
to such trustee.
(xxxviii) Escrows. All amounts required to have been deposited with the
Mortgage Loan Seller by each Mortgagor under the Mortgage Loan
Documents have been deposited and are in the possession or under the
control of the Mortgage Loan Seller or its agent. All of the Mortgage
Loan Seller's interest in these amounts will be conveyed to the
Trust. All requirements for escrows are memorialized in one or more
written agreements that are contained within the Mortgage File for
such Mortgage Loan.
(xxxix) Property Condition. To the Mortgage Loan Seller's knowledge, based
upon a site inspection conducted in connection with the origination
of the Mortgage Loan and a review of the related engineering report,
each related Mortgaged Property is free and clear of any material
damage that would affect materially and adversely the use or
operation or value of such Mortgaged Property as security for the
Mortgage Loan; the Mortgage Loan Seller has received no actual notice
of (A) any proceeding pending for the total or partial condemnation
of such Mortgaged Property or (B) any damage to such Mortgaged
Property that materially and adversely affects the use or operation
or value of such Mortgaged Property.
(xl) No Delinquent Charges. There are no delinquent taxes, ground rents,
insurance premiums or assessments (including, without limitation,
assessments payable in future installments or other similar
outstanding charges, water charges or sewer rents) affecting the
Mortgaged Property or such amounts, if existing and in dispute, have
been escrowed or covered by a letter of credit. For purposes of this
representation, an obligation shall become "delinquent" on the date
on which both of the following conditions are satisfied: (A) interest
and/or penalties are due with respect to the unpaid amount and (B)
enforcement action can be taken by the related taxing authorities.
(xli) No Encroachments. All improvements included in any MAI appraisals are
within the boundaries of the related Mortgaged Property, with the
exception of de minimis encroachments, and the Mortgage Loan Seller
has obtained title insurance insuring against any losses arising from
such de minimis encroachments. No improvements on adjoining
properties
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encroach upon the Mortgaged Property except for de minimis
encroachments or encroachments as to which the Mortgage Loan Seller
has obtained title insurance coverage insuring against losses arising
from such encroachments.
(xlii) Mortgaged Property Compliance with Zoning Laws Etc. The improvements
located on or forming part of each Mortgaged Property materially
comply with applicable zoning and building laws, ordinances and
regulations, or constitute a legal non-conforming use or structure
or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the use or operation or
value of the related Mortgaged Property.
(xliii) Permanent Financing. Except as set forth in Exhibit D, the Mortgage
Loan was not originated for the purpose of financing the construction
of uncompleted improvements on the related Mortgaged Property.
(xliv) Property Inspections. The Mortgage Loan Seller has inspected or
caused to be inspected each related Mortgaged Property within the
past twelve months.
(xlv) Access. Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, is served by public utilities and services
generally available in the surrounding community and otherwise
appropriate for the use in which the Mortgaged Property is currently
being utilized, and is a separate tax parcel.
(xlvi) First Priority Lien Insured. The lien of each related Mortgage is a
first priority lien on the fee or leasehold interest of the related
Mortgagor in the original principal amount of the related Mortgage
Loan or allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related Mortgage) and
is insured by an ALTA lender's title insurance policy or its
equivalent (or a binding commitment therefor), insuring the Mortgage
Loan Seller, its successors and assigns in the original principal
amount of the Mortgage Loan, subject only to (A) the lien of current
real property taxes, ground rents, water charges, sewer rents and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations when they become due or
the value of the Mortgaged Property and (C) the exclusions and
exceptions (general and specific) set forth in such policy, none of
which, individually or in the aggregate, materially interferes with
the current
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use of the Mortgaged Property or materially interferes with the
security intended to be provided by such Mortgage or with the related
Mortgagor's ability to pay its obligations when they become due or
the value of the Mortgaged Property. The premium for such policy was
paid in full; such policy was issued by a title insurance company
licensed to issue policies in the state in which the related
Mortgaged Property is located and is assignable to the Purchaser and
the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have been made
under such policy and the Mortgage Loan Seller has not undertaken any
action or omitted to take any action, and has no knowledge of any
such act or omission, which would impair or diminish the coverage of
such policy. Such policy contains no exclusions for or affirmatively
insures (except for any Mortgaged Property located in jurisdictions
where such affirmative insurance is not available) (a) access to a
public road, and (b) that the area shown on the survey is the same as
the property legally described in the Mortgage.
(xlvii) Environmental Matters. A Phase I environmental report, and with
respect to certain Mortgage Loans, a Phase II environmental report,
was conducted by a reputable environmental engineer in connection
with such Mortgage Loan within 12 months preceding the Closing Date,
which report did not indicate any material non-compliance or material
existence of hazardous material or, if any material non-compliance or
material existence of hazardous materials was indicated in any such
report, the remedial action recommended to be taken in the report has
been taken, or funds sufficient to cover any recommended remedial
action have been escrowed by the related Mortgagor and held by the
Mortgage Loan Seller under the related Mortgage has the obligation to
remedy such condition or circumstance. To the best of the Mortgage
Loan Seller's knowledge, in reliance on such environmental reports,
each Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to environmental hazards
other than as disclosed in such environmental reports, and to the
best of the Mortgage Loan Seller's knowledge, no notice of violation
of such laws has been issued by any governmental agency or authority,
except as indicated in certain environmental reports; the Mortgage
Loan Seller has not taken any action which would cause the Mortgaged
Property not to be in compliance with all federal, state and local
laws pertaining to environmental hazards. Each Mortgagor represents
and warrants in the related Mortgage Loan Documents that except as
set forth in certain environmental reports and to the best of its
knowledge it has not used, caused or permitted to exist and will not
use, cause or permit to exist on the related Mortgaged Property any
hazardous materials in any manner
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which violates federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of hazardous materials. Each Mortgagor (or an affiliate
thereof) has agreed to indemnify, defend and hold the Mortgage Loan
Seller and its successors and assigns harmless from and against any
and all losses, liabilities, damages, injuries, penalties, fines,
expenses, and claims of any kind whatsoever (including attorney's
fees and costs) paid, incurred or suffered by, or asserted against,
any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in
connection with such Mortgage Loan.
(xlviii) Additional Insurance. The Mortgage Loan requires that the Mortgaged
Property be covered by the following insurance policies naming the
Mortgagee and its successors and assigns as additional insured, in an
amount at least equal to the lesser of the value of the replacement
cost of the related Mortgaged Property or the principal balance of
the related Mortgage Loan, and sufficient to avoid the operation of
any co-insurance provisions: (A) fire and extended perils (included
within the classification "All Risk of Physical Loss"), (B) 12 months
(or 18 months for a Mortgaged Property which is not an office,
retail, self-storage, industrial, multifamily, mobile home park or
mixed use of the foregoing) of business interruption or rental loss
insurance, (C) flood insurance if, based solely on a flood zone
certification or a survey of the related Mortgaged Property, the
property improvements are located in a 100-year flood plain, or if
any portion of the improvements on the Mortgaged Property is located
in a federally designated flood area "A" and (D) comprehensive
general liability insurance in amounts generally required by
institutional lenders for similar properties. All premiums on such
insurance policies required to be paid as of the Cut-off Date have
been paid; such insurance policies may not be terminated or canceled
without 30 days prior written notice to the insured (for defaults
other than non-payment, for which there is a minimum of 10 days
written notice of cancellation) and no such notice has been received
by the insured. The insurance provider of each such insurance policy
has an A.M. Best's rating of at least "A:X" or a claims paying
ability rating of at least "A" from Standard & Poor's or DCR, or its
equivalent. Each related Mortgage Loan obligates the related
Mortgagor to maintain all such insurance and, at such Mortgagor's
failure to do so, authorizes the mortgagee to maintain such insurance
at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor.
(xlix) Application of Insurance and Condemnation Proceeds. Subject to clause
lxi(K) with respect to ground lease properties, any insurance
proceeds in respect of a casualty loss or taking, will be applied
either to (A) the
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repair or restoration of all or part of the related Mortgaged
Property or (B) to the payment of the outstanding principal balance
of such Mortgage Loan together with any accrued interest thereon,
except that in the case of a ground-leased property casualty and
condemnation proceeds are required to be paid first to the owner of
the fee interest in the related property in accordance with terms of
the related ground lease and then in accordance with the related
Mortgage.
(l) Terms of Mortgage. The Mortgage Loan is directly secured by a
Mortgage on a commercial, industrial, self-storage, health-care
related, retail, office, fitness center, mixed use, hospitality,
mobile home park or multifamily residential property, and either (A)
substantially all of the proceeds of the Mortgage Loan were used to
acquire, improve or protect an interest in such real property which,
as of the origination date, was the sole security for such Mortgage
Loan (unless the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at a
time when the Mortgage Loan was not in default or default with
respect thereto was not reasonably foreseeable) or (B) the fair
market value of such real property was at least equal to 80% of the
principal amount of the Mortgage Loan (1) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the Mortgage
Loan was not in default or default with respect thereto was not
reasonably foreseeable, at the date of the last such modification) or
(2) at the Closing Date; provided that the fair market value of the
real property interest must first be reduced by (I) the amount of any
lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which
event the computation described in clauses (1) and (2) shall be made
on an aggregate basis) and (II) a proportionate amount of any lien
that is in parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in clauses
(B)(1) and (B)(2) shall be made on an aggregate basis).
(li) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property, which appraisal is signed by a qualified
appraiser, who, to the best of the Mortgage Loan Seller's knowledge,
had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan; the appraisal and appraiser both satisfy the
requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, all as in effect on the date the Mortgage Loan
was originated.
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(lii) [Intentionally Omitted].
(liii) [Intentionally Omitted].
(liv) ARD Loans. If such Mortgage Loan is an ARD Loan it provides that:
(A) its Mortgage Rate will increase by no more than two percentage
points from and after its Anticipated Repayment Date;
(B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan;
(C) either (a) on the Closing Date, each ARD Loan will have a
lockbox in place, or (b) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related
Mortgagor is required to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property shall be
deposited into a designated account controlled by the Servicer;
(D) any cash flow from the related Mortgaged Property that is
applied to amortize an ARD Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in
excess of the monthly payment payable therefrom, be net of
budgeted capital expenditures and capital expenditures that may
be approved by the Servicer in accordance with the terms of the
Pooling and Servicing Agreement.
(E) each ARD Loan is being amortized as of the Cut-off Date and is
not currently subject to an interest-only period;
(F) the holder of each ARD Loan may not exercise any payment default
remedies if Mortgagor pays scheduled principal and interest (at
the related Mortgage Rate);
(G) The property manager cannot be removed for the sole reason that
the ARD Loan continues to be outstanding after its Anticipated
Repayment Date.
(lv) Health Care Facilities. If the Mortgage Loan is secured by a nursing
home or skilled living facility:
(A) To the best of the Mortgage Loan Seller's knowledge, the health
care facility located on the related Mortgaged Property and the
related owner and/or operator with respect to such facility had
all material certificates, licenses and permits required by
applicable law for the operation of such facility for its
current use and, to the extent that such facility participates
in Medicaid, Medicare, or any
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other similar third party payor program, the facility, the owner
and/or the operator possesses current provider agreements for
such programs, appropriate for the degree of care administered
at each facility.
(B) To the best of the Mortgage Loan Seller's knowledge, the related
owner or operator, with respect to the related Mortgaged
Property or its operation of the related Mortgaged Property, was
in compliance in all material respects with all applicable laws,
regulations, quality and safety standards and requirements of
the applicable state department of health, and the Mortgage Loan
Documents require that so long as the Mortgage Loan remains
outstanding the related Mortgaged Property shall be operated in
compliance in all material respects with such applicable laws
and requirements.
(C) The related Mortgage Loan Documents provide that:
(1) so long as the Mortgage Loan remains outstanding, the
related Mortgaged Property shall be operated in such a
manner that the licenses, permits and authorizations
shall remain in full force and effect,
(2) without the lender's consent, the licenses, permits and
authorizations may not be
(I) transferred to any location other than the
Mortgaged Property
(II) pledged as collateral for any other loan or
indebtedness
(3) so long as the related Mortgage Loan remains
outstanding, the Mortgagor may not without the lender's
consent
(I) rescind, withdraw, revoke, amend, modify,
supplement or otherwise alter the nature or
scope of the certificates, licenses and permits
for the related Mortgaged Property.
(II) amend or otherwise reduce the related Mortgaged
Property's authorized bed capacity and/or the
number of beds approved by the applicable state
department of health,
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(III) replace or transfer all or any part of any
related Mortgaged Property's beds to an other
site or location or
(IV) terminate, materially modify, or materially
amend the operating lease or management contract
in effect with regard to the related Mortgaged
Property.
(4) the licenses, permits and authorizations are held free
from restrictions or known conflicts which would
materially impair the use or operation of the Mortgaged
Property, and are not provisional, probationary or
restricted in any way.
(D) since origination, the Mortgage Loan Seller has not received
notice that the related owner or related operator as the case
may be, has failed to file within the time permitted, including
any extensions thereof, all such Medicare, Medicaid or other
similar program cost reports;
(E) since origination, the Mortgage Loan Seller has not received
notice that either the related owner or operator, as the case
may be, with respect to the related Mortgaged Property, or its
operation of such Mortgaged Property, (A) is subject to a
material audit adjustment with respect to its participation in
any third-party payor program or (B) has been notified that any
managed care or other third-party payor program contract is
being or has been canceled, not renewed, or downgraded in any
material respect or that any such action is pending, threatened,
or contemplated.
(lvi) [Intentionally Omitted].
(lvii) Mortgage Loans Not Originated by Mortgage Loan Seller. With respect to
each Mortgage Loan originated by a correspondent of the Mortgage Loan
Seller and purchased or "table funded" by the Mortgage Loan Seller in
connection with a correspondent relationship with such originator:
(A) such Mortgage Loan was underwritten substantially in accordance
with standards established by the Mortgage Loan Seller, (which
standards are in all material respects the same as the
underwriting standards for Mortgage Loans originated by the
Mortgage Loan Seller);
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(B) such Mortgage Loan was originated pursuant to an ongoing,
standing relationship with the Mortgage Loan Seller;
(C) the closing documents (which include assignment documents
executed by the Mortgage Loan originator in favor of the
Mortgage Loan Seller at the time of the closing of the Mortgage
Loan) for the Mortgage Loan were prepared in substantial
compliance with forms approved by the Mortgage Loan Seller, and
reflect the Mortgage Loan Seller as the successor and assign to
the Mortgage Loan originator; and
(D) such Mortgage Loan either was actually funded by and assigned to
the Mortgage Loan Seller at the closing thereof, or was funded
initially by the Mortgage Loan originator at the closing thereof
and then acquired by the Mortgage Loan Seller from such Mortgage
Loan originator pursuant to its ongoing, standing relationship
with the Mortgage Loan Seller.
(lviii) Origination. Each Mortgage Loan originated by the Mortgage Loan Seller
was underwritten consistent in all material respects with the standards
of the Mortgage Loan Seller as then in effect and each Mortgage Loan
purchased by the Mortgage Loan Seller from a third-party originator was
underwritten consistent in all material respects with prudent commercial
mortgage conduit lending standards.
(lix) Waivers. The Mortgage Loan Seller and, to the Mortgage Loan Seller's
knowledge, any prior holder of the Mortgage Loan has not waived any
default, breach, violation or event of acceleration under the related
Mortgage or Mortgage Note. No foreclosure action or other form of
enforcement is or has been threatened or commenced with respect to any
Mortgage.
(lx) Qualification. To the extent required under applicable law as of the
Closing Date and necessary for the enforceability or collectibility of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan.
(lxi) Ground Leases. With respect to any Mortgage Loan where all or a material
portion of the estate of the related Mortgagor therein is a leasehold
estate, based upon the terms of the ground lease and any estoppel
received from the ground lessor, the Mortgage Loan Seller represents and
warrants that:
(A) The ground lease or a memorandum regarding such ground lease has
been duly recorded. The ground lease permits the interest of the
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lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such
lessee or its successors or assigns in a manner that would
adversely affect the security provided by the related Mortgage.
To the Mortgage Loan Seller's knowledge, there has been no
material change in the terms of the ground lease since its
recordation, except by any written instruments which are
included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in a writing
included in the related Mortgage File that the ground lease may
not be amended, modified, canceled or terminated without the
prior written consent of the Mortgage Loan Seller and its
successors and assigns unless the holder of the Mortgage Loan
fails to cure a Mortgagor ground lease default after applicable
notice and cure periods;
(C) the ground lease has an original term (or an original term plus
one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by the
Mortgage Loan Seller) that extends not less than 20 years beyond
the Maturity Date (or Anticipated Repayment Date) of the related
Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Mortgage Loan Seller, the ground lease
is not subject to any liens or encumbrances superior to, or of
equal priority with, the lien of the Mortgage (other than any
indebtedness described in clauses (xv), (xvi) and (xxv)) and
provides that it shall remain prior to any mortgage or other
lien on the ground lessor's fee interest);
(E) The ground lease is assignable to the Mortgage Loan Seller and
its successors and assigns under the related leasehold estate
without the consent of the lessor thereunder, and in the event
that such ground lease is so assigned, it is further assignable
by the Depositor and its successors and assigns upon notice to
(and such notice has been given), but without a need to obtain
the consent of the lessor;
(F) As of the closing date of the related Mortgage Loan, the ground
lease is in full force and effect, the Mortgage Loan Seller has
received no notice that any default beyond applicable notice and
grace periods has occurred, and there is no existing condition
which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by
the lessee to the Mortgage Loan Seller or its assignee and
pursuant to such agreement, no notice given thereunder is
effective against the
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Mortgage Loan Seller (or its assignee) unless a copy has been
given to the Mortgage Loan Seller (or its assignee) in the
manner prescribed in the ground lease or ancillary agreement;
(H) A Mortgage Loan Seller or its assignee is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under the ground lease
through legal proceedings, or to take other action so long as
the Mortgage Loan Seller or its assignee is proceeding
diligently) to cure any default under the ground lease which is
curable after the receipt of notice of any default before the
lessor may terminate the ground lease, and all rights of the
Mortgagor under such ground lease may be exercised by or on
behalf of the mortgagee.
(I) The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb
the possession, interest or quiet enjoyment of any subtenant of
the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner,
which would materially and adversely affect the security
provided by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking)
will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the Mortgage Loan
Seller or its assignee or a trustee appointed by it having the
right to hold and disburse such proceeds as repair or
restoration progresses, or to the payment of the outstanding
principal balance of the Mortgage Loan, together with any
accrued interest, except that in the case of condemnation
awards, the ground lessor may be entitled to a portion of such
award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking to the related
Mortgaged Property will be applied first to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law
or in cases where a different allocation would not be viewed as
commercially unreasonable by any institutional investor, taking
into account the relative duration of the ground lease and the
related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance
of such Mortgage Loan). Until the principal balance and accrued
interest are paid in full, neither the lessee nor the lessor
under the ground lease will have an option to
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terminate or modify the ground lease without the prior written
consent of the Mortgage Loan Seller or its assignee as a result
of any casualty loss or partial condemnation, except to provide
for an abatement of the rent or otherwise in accordance with the
standard provisions of the related Mortgage;
(L) Provided that the Mortgage Loan Seller cures any defaults which
are susceptible of being cured, the lessor has agreed to enter
into a new lease with the Mortgage Loan Seller upon termination
of the ground lease for any reason, including rejection of the
ground lease in a bankruptcy proceeding.
(M) the ground lease does not permit any increase in the amount of
rent payable by the lessee thereunder during the term of the
Mortgage Loan.
(lxii) Servicing. Except as set forth in Exhibit D, no person other than the
Mortgage Loan Seller has been granted or conveyed the right to service
the Mortgage Loan or to receive any consideration in connection
therewith.
(lxiii) Borrower Concentration. Except as specified in Exhibit D, as of the
Closing Date, not more than 5% of the aggregate outstanding principal
amount of the Mortgage Loans have the same Mortgagor or to the Mortgage
Loan Seller's best knowledge, have Mortgagors that are affiliates of
each other.
(lxiv) Due Dates. The Mortgage Loan has a late charge which may be assessed
prior to the 15th day of the month.
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Schedule II
Schedule II
List of Agreements under which the Mortgage Loan Seller acquired rights
in the Mortgage Loans as provided in Section 3.7 of this Agreement
Amended and Restated Mortgage Loan Purchase Agreement by and between Merrill
Lynch Mortgage Capital Inc. and L.J. Melody & Company, as successor to CB
Commercial Mortgage Company, Inc. dated as of April 1, 1997.
Mortgage Loan Purchase Agreement by and between Merrill Lynch Mortgage Capital
Inc. and Merrill Lynch Credit Corporation dated as of April 26, 1995.
Master Mortgage Loan Purchase Agreement by and between The Chase Manhattan Bank
and Merrill Lynch Mortgage Capital Inc. dated as of May 1, 1999.
Mortgage Loan Purchase Agreement (as amended) by and between Merrill Lynch
Mortgage Capital Inc. and WMF Capital Corp dated as of August 28, 1998.
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EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") dated as of
November 1, 1999, is between Merrill Lynch Mortgage Investors Inc., a Delaware
corporation (the "Purchaser"), and Paine Webber Real Estate Securities Inc., a
Delaware corporation (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer to the
Purchaser, subject to the terms and conditions set forth below, certain mortgage
loans (the "Mortgage Loans"), which are described in, and set forth in, the
mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit
A.
The Purchaser intends to deposit the Mortgage Loans into a trust
fund (the "Trust Fund"), together with certain mortgage loans (the "Other
Mortgage Loans") purchased by the Purchaser pursuant to the Other Mortgage Loan
Purchase Agreements (as defined herein), the beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). The Trust Fund will be created and the Certificates will be
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of November 1, 1999, by and among Merrill Lynch
Mortgage Investors Inc., as depositor (the "Depositor"), ORIX Real Estate
Capital Markets, LLC, as master servicer (the "Master Servicer"), ORIX Real
Estate Capital Markets, LLC, as special servicer (the "Special Servicer"), and
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through Merrill Lynch,
Pierce, Fenner & Smith Incorporated and PaineWebber Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
November 4, 1999. The Purchaser intends to sell certain of the Certificates (the
"Publicly Offered Certificates") to Merrill Lynch, Pierce, Fenner & Smith
Incorporated and PaineWebber Incorporated (in such capacity, the "Underwriters")
on the Closing Date pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of November 1, 1999. The transactions contemplated by the
foregoing are referred to herein as the "Securitization Transaction".
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which
are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
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ARTICLE I.
DEFINITIONS
Capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the Pooling and Servicing Agreement.
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the Other Mortgage Loans sold to the Purchaser by Merrill Lynch
Mortgage Capital, Inc. and ORIX Real Estate Capital Markets, LLC pursuant to the
Other Mortgage Loan Purchase Agreements, or as otherwise separately agreed upon
in writing by the Purchaser, the Mortgage Loan Seller, Merrill Lynch Mortgage
Capital, Inc. and ORIX Real Estate Capital Markets, LLC.
"Closing Date": November 4, 1999.
"Cut-Off Date": November 1, 1999.
"Initial Pool Balance": An amount equal to approximately $592,445,159.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of trust
or other instrument securing a Mortgage Note and creating a lien on the fee or
leasehold interest in the related Mortgaged Property.
"Mortgage File": The meaning ascribed to such term in the Pooling and
Servicing Agreement, except that the endorsement referenced in clauses (i),
(iv), (v) and (viii) may be in blank.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.3 of this Agreement. As used herein, the
term "Mortgage Loan" includes each related Mortgage Note, the related Mortgage
and other documents contained in the related Mortgage File and any related
agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage, Assignment
of Leases (if any) and other agreements executed in connection with such
Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any other Person that owns or has acquired the related Mortgaged
Property and/or assumed the obligations of the original obligor under the
Mortgage Note. The representations
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and warranties made by the Mortgage Loan Seller in this Agreement as to "each
Mortgagor" are given with respect to the obligor.
"Other Mortgage Loan Purchase Agreement": Either(i) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between Merrill
Lynch Mortgage Capital, Inc. and the Purchaser, or (ii) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between ORIX Real
Estate Capital Markets, LLC and the Purchaser.
"Pooling and Servicing Agreement": The Pooling and Servicing Agreement,
dated and effective as of November 1, 1999, among Purchaser, Master Servicer,
Special Servicer and Trustee
"Prospectus Supplement": That certain prospectus supplement, dated October
29, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan required
to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as of
the date of purchase;
(ii) all accrued and unpaid interest to but not including the Due
Date in the Due Period during which such Mortgage Loan or REO Loan was
purchased;
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate and unpaid
Special Servicing Fees allocable to such Mortgage Loan; plus
(iv) all reasonable out-of-pocket expenses reasonably incurred or to
be incurred by the Master Servicer, the Special Servicer, the Depositor or
the Trustee in respect of the Breach or Document Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Term Sheet": The Structural and Collateral Term Sheet dated October
15, 1999 in respect of the Securitization Transaction.
ARTICLE II.
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PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the terms and
conditions of this Agreement, the Mortgage Loan Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans on the Closing Date.
(b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Willkie Farr & Gallagher, New York, New York,
at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full consideration for
the Mortgage Loan Seller's sale of the Mortgage Loans to the Purchaser, the
Purchaser will deliver to the Mortgage Loan Seller an amount equal to
$170,308,084 (the "Purchase Price") in immediately available funds, which
represents the purchase price of the Mortgage Loans (with accrured interest) net
of $778,655 which, subject to Section 5.1 hereof, represents the Mortgage Loan
Seller's Allocable Share of the expenses incurred in connection with the
Securitization Transaction.
2.3. Conveyance of Mortgage Loans. On the Closing Date, the Mortgage
Loan Seller shall sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, and the
Purchaser shall purchase, all right, title and interest of the Mortgage Loan
Seller in and to the Mortgage Loans, including: (i) all scheduled payments of
interest and principal due on or with respect to the Mortgage Loans after the
Cut-Off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-Off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-Off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-Off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-Off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
2.4. Delivery of Mortgage Loan Documents. (a) The Purchaser hereby
directs the Mortgage Loan Seller and the Mortgage Loan Seller hereby agrees to
deliver to
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each of the Trustee, the Custodian, the Master Servicer and the Special Servicer
(x) all documents, instruments and agreements required to be delivered by the
Purchaser to such parties pursuant to Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of Section 2.01 of the Pooling and
Servicing Agreement, and (y) such other documents, instruments and agreements
relating to the Mortgage Loans as the Purchaser, the Trustee, the Custodian, the
Master Servicer and the Special Servicer may reasonably request.
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. If the Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments required to be recorded or filed prior to the Closing Date
and to be delivered as part of a Mortgage File on or before the Closing Date,
solely because of a delay caused by the public recording or filing office where
such document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument provided
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording or filing) is delivered to the Purchaser, the Trustee or
the Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of a
Mortgage to be a true and complete copy of the original thereof submitted for
recording or filing), with evidence of recording or filing thereon, is delivered
to the Purchaser, the Trustee or the Custodian within 120 days of the Closing
Date (or within such longer period after the Closing Date as the Purchaser may
consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller is, as certified in writing to the Purchaser and the
Trustee no less often than every 90-days, in good faith attempting to obtain
from the appropriate county recorder's office such original or photocopy). If
the Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Section 2.4(b) shall
be deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of recording thereon and certified in the
case of a Mortgage by the appropriate county recorder's office to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Purchaser, the Trustee or a Custodian appointed thereby on or before the
Closing Date together with an affidavit certifying that the original thereof has
been lost or destroyed. With respect to any Mortgage Loan, and notwithstanding
the foregoing or Section 2.4(a), the Mortgage Loan Seller may deliver a UCC-3 on
or before the Closing Date that does not contain the filing information for the
related UCC-1 and/or UCC-2 if such
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UCC-1 and/or UCC-2 has not been returned to the Mortgage Loan Seller by the
applicable filing office, and the Mortgage Loan Seller may deliver assignments
of documents and/or instruments that do not contain the recording information
for the related documents and/or instruments, as applicable, if such documents
and/or instruments have not been returned to the Mortgage Loan Seller by the
applicable recording office. The Mortgage Loan Seller hereby authorizes the
Purchaser, acting in its stead and on its behalf, to fill in any missing filing
or recording information or any instrument or document required to be delivered
pursuant to this subsection (b). The delivery of an original pro forma or
specimen title insurance policy or an original marked, redated and recertified
commitment to issue a policy of lender's title insurance in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf no later than
the 90th day following the Closing Date.
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Mortgage Loan Seller shall as to each Mortgage Loan,
promptly (and in any event within 30 days of the later of the Closing Date and
the Purchaser's and Trustee's actual receipt of the related documents) cause to
be delivered to the Trustee in recordable form for recording or filing, as the
case may be, in the appropriate public office for real property records or UCC
Financing Statements, as appropriate, each assignment of an instrument and/or
document enumerated in clauses (ii), (iii), (iv), (v) and (viii) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement and each
UCC-3 to the Trustee as indicated in such assignment documents. Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee or its designee following recording, and each such UCC-3
shall reflect that the file copy thereof should be returned to the Trustee or
its designee following filing. In connection with the Mortgage Loan Seller's
delivery of Mortgage Loan documents in accordance with the preceding sentences,
the Mortgage Loan Seller hereby authorizes the Trustee as the transferee of the
Purchaser to complete each endorsement or assignment in blank appearing thereon
in favor of the Trustee in such manner as the Trustee shall determine in the
exercise of its sole discretion in its capacity as Trustee under the Pooling and
Servicing Agreement (provided that such endorsement or assignment will be
without recourse, representation or warranty to the Mortgage Loan Seller except
as expressly set forth in this Agreement). If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Purchaser or an assignee thereof, which may include, the Trustee or
its Custodian or its agent shall notify the Mortgage Loan Seller of same. The
Mortgage Loan Seller shall cure such defect within 90 days or the Purchaser may
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate, all at the Mortgage Loan
Seller's expense. The Purchaser shall execute, or cause the Mortgage Loan Seller
to execute any replacement document or instrument being filed in substitution
for any such lost or returned unrecorded or unfiled document or instrument at
the Mortgage Loan Seller's expense and assist the Purchaser, the Trustee or a
Custodian or its agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee or to file any UCC-3 in those jurisdictions where, in
the written
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opinion of local counsel of Purchaser, the Trustee or a Custodian acceptable to
the Purchaser and the Trustee, such recordation and/or filing is not required to
protect the Purchaser's or the Trustee's interest in the Mortgage Loans against
sale, further assignment, satisfaction or discharge by the Mortgage Loan Seller
or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in escrow
accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Master Servicer
promptly after the Closing Date, but in all events within three (3) business
days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Pursuant to Section 2.02 and 2.03
of the Pooling and Servicing Agreement, if the Purchaser or an assignee thereof,
which may include the Trustee or the Custodian on its behalf, discovers or
receives notice of a Document Defect or a Breach (each as defined in the Pooling
and Servicing Agreement), the Mortgage Loan Seller shall correct or cure any
such Document Defect or Breach or repurchase or substitute such Defective
Mortgage Loan in accordance with Section 3.3 of this Agreement.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the Closing Date:
(i) Purchaser Duly Formed and Authorized. The Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and the Purchaser has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and
authority to purchase and acquire the Mortgage Loans in accordance with
this Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Purchaser hereunder are the
legal, valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with the terms of this Agreement, except as
such
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enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and delivery
of this Agreement and the performance by the Purchaser of its obligations
hereunder will not conflict with any provisions of any law or regulations
to which the Purchaser is subject, or conflict with, result in a breach of
or constitute a default under any of the terms, conditions or provisions
of the certificate of incorporation or the by-laws of the Purchaser or any
indenture, agreement or instrument to which the Purchaser is a party or by
which it is bound, or any order or decree applicable to the Purchaser, or
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, which would materially and adversely affect the
ability of the Purchaser to carry out the transactions contemplated by
this Agreement; the Purchaser has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Purchaser of
this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending
or, to the Purchaser's knowledge, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the Mortgage
Loans or the ability of the Purchaser to carry out the transactions
contemplated by this Agreement.
3.2. Representations and Warranties of the Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants with
respect to itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and the Mortgage Loan Seller has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in accordance
with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Mortgage Loan Seller hereunder
are the legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage Loan Seller in accordance with the terms
of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar
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laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and delivery
of this Agreement and the performance by the Mortgage Loan Seller of its
obligations hereunder will not conflict with any provisions of any law or
regulations to which the Mortgage Loan Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of the certificate of incorporation or the
by-laws of the Mortgage Loan Seller or any indenture, agreement or
instrument to which the Mortgage Loan Seller is a party or by which it is
bound, or any order or decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on any of the Mortgage
Loan Seller's assets or property, which would materially and adversely
affect the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement; the Mortgage Loan Seller has
obtained any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Mortgage Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending
or, to the Mortgage Loan Seller's knowledge, threatened against the
Mortgage Loan Seller in any court or by or before any other governmental
agency or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Mortgage Loan Seller
to carry out the transactions contemplated by this Agreement;
(v) Mortgage Files in Possession. The Mortgage Loan Seller or its
custodian is in possession of a Mortgage File with respect to each
Mortgage Loan identified on the Mortgage Loan Schedule and each such
Mortgage File will be transferred to the Purchaser or the Trustee as its
designee. The Mortgage Loan Seller has not withheld any material
information with respect to the Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in default
in the performance of any obligations, covenants or conditions contained
in any material agreement or instrument to which it is party, which
default might have consequences that would materially and adversely affect
the financial conditions or operations of the Mortgage Loan Seller or its
properties taken as a whole or would have consequences that would
materially and adversely affect its performance hereunder.
(b) Representations and Warranties as to the Mortgage Loans. The
Mortgage Loan Seller hereby makes the representations and warranties attached
hereto as Schedule I (subject to the exceptions set forth in Exhibit D) with
respect to each Mortgage Loan, as of the date specified therein or, if no such
date is specified, as of the Closing Date.
3.3. Remedies for Breach of Certain Representations and Warranties.
(a) It is understood and agreed that the representations and warranties set
forth herein shall survive
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the sale of the Mortgage Loans to the Purchaser, notwithstanding any restrictive
or qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement or the Pooling and Servicing Agreement, and shall
inure to the benefit of the Purchaser, and the Trustee as the transferee of the
Purchaser, notwithstanding (1) any restrictive or qualified endorsement on any
Mortgage Note, assignment of Mortgage, Assignment of Leases, Rents and Profits
or reassignments thereof (2) any termination of this Agreement or (3) the
examination by any Person of, or failure by any Person to examine, any Mortgage
File. It is further understood and agreed that the representations and
warranties set forth in Section 3.2(b) relate only to the Mortgage Loans
conveyed hereunder and do not cover any mortgage loans sold to the Purchaser by
any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage Loan
Seller, the Purchaser or the Trustee that (i) a Document Defect (as defined in
the Pooling and Servicing Agreement) exists, or (ii) a Breach (as defined in the
Pooling and Servicing Agreement) has occurred with respect to any Mortgage Loan
which, in the case of either clause (i) or (ii), materially and adversely
affects the value of such Mortgage Loan or the interests of the
Certificateholders therein, the party discovering the existence of such Document
Defect or Breach with respect to such Mortgage Loan (a "Defective Mortgage
Loan") shall give prompt written notice thereof to each of the parties to the
Pooling and Servicing Agreement and the Mortgage Loan Seller.
Within 90 days of the earlier of its discovery or its receipt of notice of
any such Defective Mortgage Loan (or in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions, no later than 90 days following the date on which any
party to the Pooling and Servicing Agreement discovers such Document Defect or
Breach), the Mortgage Loan Seller shall cure such Document Defect or Breach in
all material respects, which shall include payment of losses and any expenses
associated therewith, or, if such Document Defect or Breach cannot be cured
within such 90-day period, either (i) repurchase the affected Mortgage Loan at
the applicable Repurchase Price not later than the end of such 90-day period, or
(ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage
Loan and pay to the Trustee, for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith no later than the end of
such 90-day period. Notwithstanding the above, if such Document Defect or Breach
is capable of being cured but not within such 90-day period, such Document
Defect or Breach does not relate to the Mortgage Loan not being treated as a
"qualified mortgage" within the meaning of the REMIC Provisions, and the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Document Defect or Breach within such 90-day period, such Mortgage Loan
Seller shall have an additional 90-days to complete such cure (or, failing such
cure, to repurchase the related Mortgage Loan); provided, however, that with
respect to such additional 90 day period, the Mortgage Loan Seller shall have
delivered to the Trustee, the Master Servicer and each Rating Agency, an
officer's certificate with all relevant correspondence and communication in the
possession of the Mortgage Loan Seller as of the date thereof relating to such
Document Defect or Breach, that describes the reasons that a cure was not
effected within the first 90-day cure period, what actions the Mortgage Loan
Seller is pursuing in connection with the cure
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thereof, the actions it proposes to take to effect such cure, and which states
that it anticipates such Document Defect or Breach will be cured within the
additional 90-day period.
If the affected Mortgage Loan is to be repurchased, the payment of
the Repurchase Price with respect to any Mortgage Loans repurchased by the
Mortgage Loan Seller shall be paid in accordance with the directions of the
Master Servicer as agent for the Trustee. If the affected Mortgage Loan is to be
substituted, (I) the Mortgage Loan Seller shall, on the date of substitution,
remit the Substitution Shortfall Amount by wire transfer of immediately
available funds in accordance with the directions of the Master Servicer as
agent for the Trustee; (II) no such substitution may be made in any calendar
month after the Determination Date for such month; (III) the Mortgage Loan
Seller shall, on the date of substitution, certify in writing to the Trustee and
the Master Servicer that the Qualified Substitute Mortgage Loan(s) meets all of
the requirements of the definition of "Qualified Substitute Mortgage Loan" in
the Pooling and Servicing Agreement and that the representations and warranties
set forth in Section 3.2 hereof are true and correct with respect to the
Mortgage Loan Seller and such Qualified Substitute Mortgage Loan(s) (which
includes a mortgage loan schedule describing such Qualified Substitute Mortgage
Loan(s) substantially in the form of Exhibit A)) and shall agree with the
Trustee in writing to be subject to the terms and provisions of this Agreement
with respect to such Qualified Substitute Mortgage Loan(s) as of the date of
substitution; (IV) scheduled payments of principal and interest due with respect
to any such Qualified Substitute Mortgage Loan after the related date of
substitution shall be part of the Trust Fund; and (V) scheduled payments of
principal and interest due with respect to any such Qualified Substitute
Mortgage Loan on or prior to the related date of substitution shall not be part
of the Trust Fund, and the Mortgage Loan Seller shall be entitled to receive
such payments promptly following receipt thereof by the Master Servicer as the
agent of the Trustee.
It is understood and agreed that the obligations of the Mortgage
Loan Seller set forth in this Section 3.3(b) to cure or repurchase or substitute
for a Defective Mortgage Loan constitute the sole remedies available to the
Purchaser and its successors and assigns respecting a Defective Mortgage Loan.
Upon any such repurchase or substitution of a Mortgage Loan by the Mortgage Loan
Seller, the Purchaser shall execute and deliver (or shall cause the Trustee to
execute and deliver) such instruments of transfer or assignment presented to it
by the Mortgage Loan Seller, in each case without recourse, as shall be
necessary to vest in the Mortgage Loan Seller the legal and beneficial ownership
of such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto) and the related rights
under each agreement assigned pursuant to Section 3.7 hereof, and shall deliver
the related Mortgage File to the Mortgage Loan Seller or its designee after
receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b) with respect to
a Defective Mortgage Loan, no provision of this Agreement shall be interpreted
as limiting (or otherwise be deemed to limit) the Purchaser's right to pursue
any remedies it may have under this Agreement, in equity or at law, in
connection with any breach by the Mortgage Loan Seller of any term hereof.
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(d) The Mortgage Loan Seller hereby acknowledges the assignment by
the Purchaser to the Trustee, as trustee under the Pooling and Servicing
Agreement, for the benefit of the Certificateholders, of the representations and
warranties contained herein and of the obligation of the Mortgage Loan Seller to
cure or repurchase Defective Mortgage Loans pursuant to this Section. The
Trustee or its designee may enforce such obligation as provided in Section 5.3
hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees that,
pursuant to Section 2.03(b) of the Pooling and Servicing Agreement, the Master
Servicer and the Special Servicer (in the case of Specially Serviced Mortgage
Loans) have the right, for the benefit of the Certificateholders, to enforce the
obligations of the Mortgage Loan Seller under this Section 3.3. The Master
Servicer and the Special Servicer, as the case may be, shall be reimbursed for
the reasonable costs of such enforcement in accordance with the Pooling and
Servicing Agreement.
3.4. [Intentionally Omitted].
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order to
perform any of its obligations or satisfy any of the conditions on its part to
be performed or satisfied pursuant to the Certificate Purchase Agreement and the
Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The Mortgage
Loan Seller agrees to execute and deliver such instruments and take such actions
as the Purchaser may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement and to
effectuate the securitization of the Mortgage Loans pursuant to the Pooling and
Servicing Agreement and to carry out its obligations under the Pooling and
Servicing Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, sells, transfers, assigns, delivers, sets-over and
conveys to the Purchaser all the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans pursuant to each agreement between
the Mortgage Loan Seller and the originators of the Mortgage Loans (where such
originators are Persons other than the Mortgage Loan Seller) pursuant to which
the Mortgage Loan Seller acquired rights in such Mortgage Loan (which agreements
are set forth on Schedule II attached hereto), including, without limitation,
all of the Mortgage Loan Seller's right, title and interest in any claims,
insurance policies, escrow accounts, demands, causes of action and any other
collateral arising out of and/or executed and/or delivered in or to, together
with any other documents or instruments executed and/or delivered in connection
with or otherwise related to the Mortgage Loans, without recourse,
representation or warranty except as set forth herein.
ARTICLE IV.
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CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage File shall be delivered to and held by the Trustee on
behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as Exhibit A;
(iii) an officer's certificate from the Mortgage Loan Seller dated
as of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Shearman & Stearling, counsel to the Mortgage
Loan Seller, substantially in the form attached hereto as Exhibit C;
(v) such other opinions of counsel as the Mortgage Loan Seller, the
Depositor or the Underwriters may require;
(vi) each of the Other Mortgage Loan Purchase Agreements have been
duly executed and delivered;
(vii) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the ratings from Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc.
("Standard & Poor's") and Duff & Phelps Credit Rating Co. ("DCR") set
forth in Clause (viii) of this Section 4.1(b);
(viii) Letters from Standard & Poor's and DCR showing the following
ratings: for (i) the Class A-1 and Class A-2 Certificates, a "AAA" rating
from each of Standard & Poor's and DCR, (ii) the Class B Certificates, a
"AA" rating from each of Standard & Poor's and DCR, (iii) the Class C
Certificates, a "A" rating from each of
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Standard & Poor's and DCR, (iv) the Class D Certificates, a "A-" rating
from each of Standard & Poor's and DCR, (v) the Class E Certificates, a
"BBB" rating from each of Standard & Poor's and DCR, (vi) the Class F
Certificates, a "BBB-" rating from each of Standard & Poor's and DCR,
(vii) the Class IO Certificates, a "AAAr" and "AAA" rating from Standard &
Poor's and DCR, respectively, (viii), the Class G Certificates, a "BB"
rating from each of Standard & Poor's and DCR, (ix) the Class H
Certificates, a "B" rating from each of Standard & Poor's and DCR, and (x)
the Class J Certificates, a "B-" rating from each of Standard & Poor's and
DCR.
(ix) a letter from the independent accounting firm of Deloitte &
Touche LLP in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans as set forth in the Prospectus
and the Prospectus Supplement and certain information regarding the
Certificates as set forth in the Prospectus and the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The obligations of
the Mortgage Loan Seller under this Agreement shall be subject to the
satisfaction, on the Closing Date, of the Purchaser's compliance with all of the
Purchaser's obligations under this Agreement.
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ARTICLE V.
MISCELLANEOUS
5.1. Costs. If, pursuant to Section 2.2, the amounts deducted by the
Purchaser in respect of the Mortgage Loan Seller's Allocable Share of
transaction expenses from the purchase price of the Mortgage Loans are
subsequently determined to be less than or greater than the actual amounts owed
to the Purchaser by the Mortgage Loan Seller with respect thereto, the Mortgage
Loan Seller shall promptly reimburse the Purchaser or its designee for the
amount of such deficiency, or the Purchaser shall refund, or cause to be
refunded, to the Mortgage Loan Seller the amount of such excess, as the case may
be.
5.2. Indemnification and Contribution: (a) The Mortgage Loan Seller
shall indemnify and hold harmless the Purchaser and the Underwriters, the
directors, officers, employees and agents of the Purchaser and the Underwriters,
and each person who controls the Purchaser and the Underwriters within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus Supplement dated October 15, 1999
(the "Preliminary Prospectus Supplement"), the Prospectus Supplement, the
Memorandum, the Term Sheet, or in any amendment thereof or supplement thereto
(such amendment or supplement which has been reviewed by the Mortgage Loan
Seller) (collectively, the "Disclosure Documents"), or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, but only to the
extent such untrue statement, alleged untrue statement, omission or alleged
omission arises out of or is based upon any information provided by or on behalf
of the Mortgage Loan Seller to the Purchaser or the Underwriters with respect to
the Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale of such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained in such Preliminary
Prospectus Supplement which was the basis of any such claim was corrected in the
Prospectus Supplement and provided, further, that the indemnification provided
by this Section 5.2 shall not apply to the extent that such untrue statement or
omission was made as a result of an error in (i) the manipulation, (ii)
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any calculations based upon, or (iii) any aggregation (other than an aggregation
made by the Mortgage Loan Seller or an aggregation contained in tabular
information provided by the Mortgage Loan Seller) of, the information regarding
the Mortgage Loans, the related Mortgagor and the related Mortgaged Properties
with comparable information relating to the Other Mortgage Loans conveyed by
other mortgage loan sellers. This indemnity agreement will be in addition to any
liability which the Mortgage Loan Seller may otherwise have. For all purposes of
this Agreement, and notwithstanding anything herein contained to the contrary,
the Mortgage Loan Seller Information includes, and is limited to, (i) the
representations and warranties of the Mortgage Loan Seller set forth in Section
3.2 herein, (ii) summaries of the individual Mortgage Loans and any letters,
certifications and other materials furnished to the Purchaser by the Mortgage
Loan Seller relating to the Mortgage Loans, (iii) reports of environmental
assessments of the related Mortgaged Properties furnished to the Purchaser by
the Mortgage Loan Seller relating to the Mortgage Loans, (iv) reports of site
inspections of the related Mortgaged Properties furnished to the Purchaser by
the Mortgage Loan Seller relating to the Mortgage Loans, (v) all information and
documentation relating to the Mortgage Loans and included in the investor and
Rating Agencies due diligence files and any documents or information relating to
the Mortgage Loans and provided by the Mortgage Loan Seller or any of its
affiliates to potential investors, including but not limited to Mortgage Loan
legal, underwriting and servicing documents and information, (vi) the
information regarding the Mortgage Loans, property managers, underwriting
standards of the Mortgage Loan Seller and the Mortgage Loan Seller set forth in
the Disclosure Documents, and (vii) any computer diskettes, computer tapes
and/or other electronic media furnished to the Purchaser by the Mortgage Loan
Seller relating to the Mortgage Loans containing (A) the information on the
Mortgage Loan Schedule, and (B) information regarding the Mortgage Loans
provided by the Mortgage Loan Seller to the Depositor or any Underwriter and
used in preparing Computational Materials (as such term is defined in the
no-action letter issued by the staff of the Securities and Exchange Commission
(the "SEC"), dated May 20, 1994 to Kidder, Peabody Acceptance Corporation I),
Collateral Term Sheets, ABS Term Sheets, and/or Structural Term Sheets (as such
terms are defined in the no-action letter issued by the SEC, dated February 17,
1995 to the Public Securities Association).
(b) The Purchaser shall indemnify and hold harmless the Mortgage
Loan Seller, its directors, officers, employees and agents, and each person, if
any, who controls the Mortgage Loan Seller within the meaning of either the 1933
Act or the 1934 Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Disclosure Documents, any Computational Materials, Collateral Term Sheets, ABS
Term Sheets, and/or Structural Term Sheets, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, except to the extent the
such untrue statement, alleged untrue statement, omission or alleged omission is
based upon the Mortgage Loan Seller Information, and the Purchaser shall
reimburse each such
16
<PAGE>
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5.2 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5.2, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 5.2, except to the extent that it has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 5.2. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party for
expenses incurred by the indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel
(together with one local counsel, if applicable), approved by the Purchaser in
the case of subsection (a) above, representing the indemnified parties under
subsection (a) above who are parties to such action), (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of
17
<PAGE>
the indemnified party of parties in connection with all claims which have been
asserted against the indemnified party or parties in such proceeding by the
other parties to such settlement, and shall be entitled to settle such
proceeding without the consent of the indemnified party or parties so long as
such settlement (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section 5.2 shall
for any reason be unavailable in accordance with its terms to an indemnified
party under this Section 5.2, then the Mortgage Loan Seller and the Purchaser
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above, in such proportion as is appropriate to reflect (i) the
relative benefits received by the Mortgage Loan Seller on the one hand and the
Purchaser on the other from the purchase and sale of the Mortgage Loans and the
offering of the Certificates and (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above, but
also to reflect the relative fault of the Mortgage Loan Seller on the one hand
and the Purchaser on the other in connection with the statement or omission that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Purchaser on the one hand and the Mortgage Loan Seller on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Certificates (before deducting expenses but net of underwriting discounts
and commissions) received by the Purchaser bear to the total net proceeds
received by the Mortgage Loan Seller with respect to the sale of the Mortgage
Loans (before deducting expenses). The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Mortgage Loan Seller or the Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Mortgage Loan
Seller and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were to be determined by per capita
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d) subject to the limitations therein
provided under subsection (c). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit of, and may be enforced by or on behalf of, the Trustee and
the Holders of Certificates to the
18
<PAGE>
same extent that the Purchaser has rights against the Mortgage Loan Seller under
this Agreement in respect of representations, warranties and agreements made by
the Mortgage Loan Seller herein, and all such representations and warranties
shall survive delivery of the Mortgage Files to the Trustee until the
termination of the Pooling and Servicing Agreement. Section 5.2 of this
Agreement shall survive delivery of the Mortgage Files to the Trustee and remain
in full force and effect after the termination or cancellation of this
Agreement.
5.4. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York (without regard
to conflicts of laws principles), and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws, except
that the parties intend that the provisions of 5-1401 of the New York General
Obligations Law shall apply to this Agreement.
5.6. Modifications. (a) Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(b) This Agreement may not be changed in any manner which would have
a material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
(c) This Agreement may be executed in any number of counterparts,
each of which shall, for all purposes, be deemed to be an original and all of
which shall together constitute but one and the same instrument.
5.7. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at Merrill Lynch
Mortgage Investors Inc., World Financial Center, New York, New York 10281,
Attention: Bruce L. Ackerman, telecopy number: (212) 449-7684; or, if sent to
the Mortgage Loan Seller, will be mailed, delivered or transmitted by facsimile
and confirmed to it at Paine Webber Real Estate Securities Inc., 1285 Avenue of
the Americas, 19th Floor, New York, New York 10019, Attention: Steven J. Plust,
telecopy number: (212) 713-8606.
5.8. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement.
19
<PAGE>
5.9. Confirmation of Intent. It is the express intent of the parties
hereto that the conveyance contemplated by this Agreement be, and be treated for
all purposes as, a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Mortgage Loan Seller to secure a debt or other obligation
of the Mortgage Loan Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to continue to be property of
the Mortgage Loan Seller then (a) this Agreement shall also be deemed to be a
security agreement under applicable law; (b) the transfer of the Mortgage Loans
provided for herein shall be deemed to be a grant by the Mortgage Loan Seller to
the Purchaser of a first priority security interest in all of the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property; (c) the possession by the
Purchaser or any successor thereto of the related Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser or any successor thereto for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof shall also be deemed to be an assignment of any
security interest created hereby.
[Signatures Appear on Next Page]
20
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
MERRILL LYNCH MORTGAGE
INVESTORS INC., as Purchaser
By: /s/ Michael M. McGovern
-------------------------------------
Name: Michael M. McGovern
Title: Authorized Signatory
PAINE WEBBER REAL ESTATE
SECURITIES, INC., as Mortgage Loan Seller
By: /s/ Steven Plust
-------------------------------------
Name: Steven Plust
Title: Managing Director
S-1
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Mortgage Loan Schedule MLMI 1999-C1
<TABLE>
<CAPTION>
Control No. Property Name Property Type Address
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PW-6045 Redbud Plaza Retail 210-282 Norman Center Court
PW-6132 Arlington Apartments Multifamily 2700 Whitney Avenue
PW-6376 Shadowbrook Apartments Multifamily 2200 Westbend Parkway
PW-6437 175-181 Broadway Multifamily 175-181 Broadway
PW-6482 Fayetteville/Jacksonville Office Portfolio Office Various
PW-6482A Ramsey Street Office Building Office 6200 Ramsey Street
PW-6482B Yadkin Road Building Office 6448 Yadkin Road
PW-6482C Cliffdale Road Office Building Office 6920 Cliffdale Road
PW-6482D Henderson Drive Office Building Office 3466 Henderson Drive
PW-7043 The Woods at Frenchman's Creek Multifamily 3001 58th Avenue South
PW-7064 Oklahoma City Industrial Industrial 2500-2692 West Interstate 40
PW-7119 Washingtonville Manor MHP Mobile Home Park East Avenue & Hallock Drive
PW-7127 1485-1495 Davis Road Industrial 1485-1495 Davis Road
PW-7130 Ben White Business Park Industrial 209 East Ben White Boulevard
PW-7141 Summercreek Apartments Multifamily 11851 Belair Drive
PW-7146 Westbrook Towers Multifamily 317 West Spring Street
PW-7166 Cobblestone Apartments Multifamily 2430-2444 Whitfield Road
PW-7170 O'Connor Place Apartments Multifamily 316 West 5th Street
PW-7312 Plaza Park MHPs Mobile Home Park Various
PW-7312A Plaza MHP Mobile Home Park 2145 N. Dixie Highway
PW-7312B Spring Valley MHP Mobile Home Park 769 State Route 42
PW-7312C Blair MHP Mobile Home Park 16 Pam Lane
PW-7395 Red Lion Apartments Multifamily 4726 Narrow Lane Road
PW-7424 St. Pete Beach Apartments Multifamily 9050-9060 Blind Pass Road
PW-7562 401 N. Broad Street Office 401 N. Broad Street
PW-7710 Peachtree Village Mobile Home Park Mobile Home Park 1475 Peachtree Industrial Blvd.
PW-7781 Sherwood Lane Apartments Multifamily 4506 Sherwood Lane
PW-7789 Lexus Training Center Industrial 205 Jefferson Road
PW-7905 Blue Cross Blue Shield Building Office Carotech Boulevard
PW-7958 1399 Madison Building Office 1399 Madison Ave.
PW-8028 Tops Appliance Building Retail 1525-1535 Hart Place
PW-8064 Office Max Retail 721 East Colorado Boulevard
PW-8202 First American Building Office 8435 Stemmons Freeway
PW-8313 Crossings Apartments Multifamily 3555 Highway 544 Overpass
PW-8352 Helix Building Industrial 3078 East Sunset Road, Bldg. B
PW-8703 Virginia Apartment Portfolio Multifamily Various
PW-8703A Norport Apartments Multifamily 9 Seminole Drive
PW-8703B Colonial Court Multifamily 58 Colonial Court
PW-8703C Lee Hall Multifamily 523 Summit Street
PW-8703D River Drive Apartments Multifamily 209A 73rd Street
PW-7942 Bend River Mall Retail 3188 N. Highway 97
PW-6410 Gateway Plaza Retail 544-750 N. Third Street
PW-8085 Pepperwood Apartments Multifamily 13725 Christine Court
PW-8763 Sunset Hills Apartments Multifamily 2825 Bluegrass Lane
PW-7790 Smithtown Bypass Office 732 & 738 Smithtown Bypass
PW-8694 Eckerd's Building Industrial 301 South Trade Center Parkway
PW-6232 310 Merrick Road Retail 310 Merrick Road
<CAPTION>
Cut-Off Date
Control No. Property Name City State Zip Code Balance
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PW-6045 Redbud Plaza Norman OK 73072 1,893,937.21
PW-6132 Arlington Apartments Harvey LA 70058 6,390,041.56
PW-6376 Shadowbrook Apartments New Orleans LA 70114 6,388,722.18
PW-6437 175-181 Broadway Passaic NJ 07055 935,927.32
PW-6482 Fayetteville/Jacksonville Office Portfolio Fayetteville & Jacksonville NC Various 3,255,995.77
PW-6482A Ramsey Street Office Building Fayetteville NC 28311
PW-6482B Yadkin Road Building Fayetteville NC 28303
PW-6482C Cliffdale Road Office Building Fayetteville NC 28304
PW-6482D Henderson Drive Office Building Jacksonville NC 28546
PW-7043 The Woods at Frenchman's Creek St. Petersburg FL 33712 5,878,000.82
PW-7064 Oklahoma City Industrial Oklahoma City OK 73108 2,496,097.90
PW-7119 Washingtonville Manor MHP Washingtonville NY 10922 1,498,747.13
PW-7127 1485-1495 Davis Road Elgin IL 60123 1,023,566.60
PW-7130 Ben White Business Park Austin TX 77040 1,690,332.98
PW-7141 Summercreek Apartments San Antonio TX 78213 4,317,857.36
PW-7146 Westbrook Towers West Haven CT 06516 2,084,258.71
PW-7166 Cobblestone Apartments Clarksville TN 37040 1,544,810.71
PW-7170 O'Connor Place Apartments Irving TX 75060 797,212.52
PW-7312 Plaza Park MHPs Lima, London & Chillicothe OH Various 2,045,560.57
PW-7312A Plaza MHP Lima OH 45802
PW-7312B Spring Valley MHP London OH 43140
PW-7312C Blair MHP Chillicothe OH 43140
PW-7395 Red Lion Apartments Montgomery AL 36116 2,247,635.94
PW-7424 St. Pete Beach Apartments St. Pete Beach FL 33706 948,325.95
PW-7562 401 N. Broad Street Philadelphia PA 19108 6,690,462.65
PW-7710 Peachtree Village Mobile Home Park Buford GA 30518 1,920,704.91
PW-7781 Sherwood Lane Apartments Houston TX 77092 721,000.99
PW-7789 Lexus Training Center Parsippany NJ 07054 3,048,754.08
PW-7905 Blue Cross Blue Shield Building Columbia SC 29203 25,288,017.24
PW-7958 1399 Madison Building Memphis TN 38103 2,099,239.59
PW-8028 Tops Appliance Building Brooklyn NY 11224 6,789,386.28
PW-8064 Office Max Pasadena CA 91101 4,792,696.69
PW-8202 First American Building Dallas TX 75247 18,568,200.18
PW-8313 Crossings Apartments Conway SC 29526 3,645,729.56
PW-8352 Helix Building Las Vegas NV 89120 2,195,846.37
PW-8703 Virginia Apartment Portfolio Various VA Various 17,374,118.66
PW-8703A Norport Apartments Portsmouth VA 23702
PW-8703B Colonial Court Colonial Heights VA 23834
PW-8703C Lee Hall Petersburgh VA 23803
PW-8703D River Drive Apartments Newport News VA 23607
PW-7942 Bend River Mall Bend OR 97741 8,490,237.26
PW-6410 Gateway Plaza Laramie WY 82070 6,094,764.50
PW-8085 Pepperwood Apartments Tampa FL 33613 999,392.88
PW-8763 Sunset Hills Apartments Henderson NV 89104 6,343,510.01
PW-7790 Smithtown Bypass Smithtown NY 11787 3,898,646.39
PW-8694 Eckerd's Building Woodlands TX 77385 3,698,575.34
PW-6232 310 Merrick Road Rockville Center NY 11570 2,050,000.00
<CAPTION>
P&I Payment Remaining Remaining
Control No. Property Name (monthly) Gross Rate Term (mos) Amort (mos)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PW-6045 Redbud Plaza 13,941.53 8.000% 114 354
PW-6132 Arlington Apartments 47,184.20 8.050% 117 357
PW-6376 Shadowbrook Apartments 48,983.86 8.450% 116 356
PW-6437 175-181 Broadway 7,474.35 8.350% 115 295
PW-6482 Fayetteville/Jacksonville Office Portfolio 26,282.61 8.500% 117 297
PW-6482A Ramsey Street Office Building
PW-6482B Yadkin Road Building
PW-6482C Cliffdale Road Office Building
PW-6482D Henderson Drive Office Building
PW-7043 The Woods at Frenchman's Creek 43,218.73 8.000% 116 356
PW-7064 Oklahoma City Industrial 19,756.85 8.800% 116 356
PW-7119 Washingtonville Manor MHP 11,547.45 7.970% 119 299
PW-7127 1485-1495 Davis Road 7,808.84 8.400% 117 357
PW-7130 Ben White Business Park 12,952.40 7.850% 114 294
PW-7141 Summercreek Apartments 31,470.67 7.900% 115 355
PW-7146 Westbrook Towers 15,907.17 8.400% 116 356
PW-7166 Cobblestone Apartments 12,272.81 8.300% 116 296
PW-7170 O'Connor Place Apartments 6,906.34 9.350% 115 295
PW-7312 Plaza Park MHPs 14,757.35 7.800% 116 356
PW-7312A Plaza MHP
PW-7312B Spring Valley MHP
PW-7312C Blair MHP
PW-7395 Red Lion Apartments 16,903.50 8.250% 118 358
PW-7424 St. Pete Beach Apartments 7,271.04 8.450% 116 356
PW-7562 401 N. Broad Street 54,150.93 9.050% 116 356
PW-7710 Peachtree Village Mobile Home Park 13,724.48 7.700% 116 356
PW-7781 Sherwood Lane Apartments 6,129.40 9.125% 116 296
PW-7789 Lexus Training Center 22,913.63 8.250% 119 359
PW-7905 Blue Cross Blue Shield Building 183,003.73 7.850% 119 359
PW-7958 1399 Madison Building 16,221.66 8.550% 119 359
PW-8028 Tops Appliance Building 53,738.64 8.800% 116 356
PW-8064 Office Max 35,639.86 8.125% 117 357
PW-8202 First American Building 138,992.60 8.200% 118 358
PW-8313 Crossings Apartments 26,401.72 7.850% 118 358
PW-8352 Helix Building 16,979.96 8.000% 118 298
PW-8703 Virginia Apartment Portfolio 130,109.28 8.200% 117 357
PW-8703A Norport Apartments
PW-8703B Colonial Court
PW-8703C Lee Hall
PW-8703D River Drive Apartments
PW-7942 Bend River Mall 61,896.60 7.920% 118 358
PW-6410 Gateway Plaza 46,264.39 8.350% 118 358
PW-8085 Pepperwood Apartments 8,529.34 9.200% 119 299
PW-8763 Sunset Hills Apartments 48,152.57 8.350% 118 358
PW-7790 Smithtown Bypass 30,403.20 8.650% 119 359
PW-8694 Eckerd's Building 28,187.99 8.400% 119 359
PW-6232 310 Merrick Road 15,908.24 8.600% 120 360
<CAPTION>
Maturity Date Ground Balloon/Hyperam/
Control No. Property Name ARD Date Lease Fully Amort
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PW-6045 Redbud Plaza 5/1/09 No Balloon
PW-6132 Arlington Apartments 8/1/09 No Balloon
PW-6376 Shadowbrook Apartments 7/1/09 No Balloon
PW-6437 175-181 Broadway 6/1/09 No Balloon
PW-6482 Fayetteville/Jacksonville Office Portfolio 8/1/09 See below Balloon
PW-6482A Ramsey Street Office Building
PW-6482B Yadkin Road Building
PW-6482C Cliffdale Road Office Building
PW-6482D Henderson Drive Office Building
PW-7043 The Woods at Frenchman's Creek 7/1/09 No Balloon
PW-7064 Oklahoma City Industrial 7/1/09 No Balloon
PW-7119 Washingtonville Manor MHP 10/1/09 No Balloon
PW-7127 1485-1495 Davis Road 8/1/09 No Balloon
PW-7130 Ben White Business Park 5/1/09 No Balloon
PW-7141 Summercreek Apartments 6/1/09 No Balloon
PW-7146 Westbrook Towers 7/1/09 No Balloon
PW-7166 Cobblestone Apartments 7/1/09 No Balloon
PW-7170 O'Connor Place Apartments 6/1/09 No Balloon
PW-7312 Plaza Park MHPs 7/1/09 See below Balloon
PW-7312A Plaza MHP No
PW-7312B Spring Valley MHP No
PW-7312C Blair MHP No
PW-7395 Red Lion Apartments 9/1/09 No Balloon
PW-7424 St. Pete Beach Apartments 7/1/09 No Balloon
PW-7562 401 N. Broad Street 7/1/09 No Balloon
PW-7710 Peachtree Village Mobile Home Park 7/1/09 No Balloon
PW-7781 Sherwood Lane Apartments 7/1/09 No Balloon
PW-7789 Lexus Training Center 10/1/09 No Hyperam
PW-7905 Blue Cross Blue Shield Building 10/1/09 No Hyperam
PW-7958 1399 Madison Building 10/1/09 No Hyperam
PW-8028 Tops Appliance Building 7/1/09 No Hyperam
PW-8064 Office Max 8/1/09 No Hyperam
PW-8202 First American Building 9/1/09 No Hyperam
PW-8313 Crossings Apartments 9/1/09 No Balloon
PW-8352 Helix Building 9/1/09 No Balloon
PW-8703 Virginia Apartment Portfolio 8/1/09 See below Balloon
PW-8703A Norport Apartments No
PW-8703B Colonial Court No
PW-8703C Lee Hall No
PW-8703D River Drive Apartments No
PW-7942 Bend River Mall 9/1/09 No Balloon
PW-6410 Gateway Plaza 9/1/09 No Balloon
PW-8085 Pepperwood Apartments 10/1/09 No Balloon
PW-8763 Sunset Hills Apartments 9/1/09 No Balloon
PW-7790 Smithtown Bypass 10/1/09 No Hyperam
PW-8694 Eckerd's Building 10/1/09 No Balloon
PW-6232 310 Merrick Road 11/1/09 No Hyperam
<CAPTION>
Sub Master Mortgage
Control No. Property Name Servicing fees Servicing fees Loan Seller Subservicer
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PW-6045 Redbud Plaza incl. In Master 0.070 PWRES ORIX
PW-6132 Arlington Apartments incl. In Master 0.070 PWRES ORIX
PW-6376 Shadowbrook Apartments incl. In Master 0.070 PWRES ORIX
PW-6437 175-181 Broadway incl. In Master 0.070 PWRES ORIX
PW-6482 Fayetteville/Jacksonville Office Portfolio incl. In Master 0.070 PWRES ORIX
PW-6482A Ramsey Street Office Building
PW-6482B Yadkin Road Building
PW-6482C Cliffdale Road Office Building
PW-6482D Henderson Drive Office Building
PW-7043 The Woods at Frenchman's Creek incl. In Master 0.070 PWRES ORIX
PW-7064 Oklahoma City Industrial incl. In Master 0.070 PWRES ORIX
PW-7119 Washingtonville Manor MHP incl. In Master 0.070 PWRES ORIX
PW-7127 1485-1495 Davis Road incl. In Master 0.070 PWRES ORIX
PW-7130 Ben White Business Park incl. In Master 0.070 PWRES ORIX
PW-7141 Summercreek Apartments incl. In Master 0.070 PWRES ORIX
PW-7146 Westbrook Towers incl. In Master 0.070 PWRES ORIX
PW-7166 Cobblestone Apartments incl. In Master 0.070 PWRES ORIX
PW-7170 O'Connor Place Apartments incl. In Master 0.070 PWRES ORIX
PW-7312 Plaza Park MHPs incl. In Master 0.070 PWRES ORIX
PW-7312A Plaza MHP
PW-7312B Spring Valley MHP
PW-7312C Blair MHP
PW-7395 Red Lion Apartments incl. In Master 0.070 PWRES ORIX
PW-7424 St. Pete Beach Apartments incl. In Master 0.070 PWRES ORIX
PW-7562 401 N. Broad Street incl. In Master 0.070 PWRES ORIX
PW-7710 Peachtree Village Mobile Home Park incl. In Master 0.070 PWRES ORIX
PW-7781 Sherwood Lane Apartments incl. In Master 0.070 PWRES ORIX
PW-7789 Lexus Training Center incl. In Master 0.070 PWRES ORIX
PW-7905 Blue Cross Blue Shield Building incl. In Master 0.070 PWRES ORIX
PW-7958 1399 Madison Building incl. In Master 0.070 PWRES ORIX
PW-8028 Tops Appliance Building incl. In Master 0.070 PWRES ORIX
PW-8064 Office Max incl. In Master 0.070 PWRES ORIX
PW-8202 First American Building incl. In Master 0.070 PWRES ORIX
PW-8313 Crossings Apartments incl. In Master 0.070 PWRES ORIX
PW-8352 Helix Building incl. In Master 0.070 PWRES ORIX
PW-8703 Virginia Apartment Portfolio incl. In Master 0.070 PWRES ORIX
PW-8703A Norport Apartments
PW-8703B Colonial Court
PW-8703C Lee Hall
PW-8703D River Drive Apartments
PW-7942 Bend River Mall incl. In Master 0.070 PWRES ORIX
PW-6410 Gateway Plaza incl. In Master 0.070 PWRES ORIX
PW-8085 Pepperwood Apartments incl. In Master 0.070 PWRES ORIX
PW-8763 Sunset Hills Apartments incl. In Master 0.070 PWRES ORIX
PW-7790 Smithtown Bypass incl. In Master 0.070 PWRES ORIX
PW-8694 Eckerd's Building incl. In Master 0.070 PWRES ORIX
PW-6232 310 Merrick Road incl. In Master 0.070 PWRES ORIX
<CAPTION>
Interest
Control No. Property Name Defeasance Accrual Cross defaulted
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PW-6045 Redbud Plaza Yes Actual/360 No
PW-6132 Arlington Apartments Yes Actual/360 No
PW-6376 Shadowbrook Apartments Yes Actual/360 No
PW-6437 175-181 Broadway Yes Actual/360 No
PW-6482 Fayetteville/Jacksonville Office Portfolio Yes Actual/360 No
PW-6482A Ramsey Street Office Building
PW-6482B Yadkin Road Building
PW-6482C Cliffdale Road Office Building
PW-6482D Henderson Drive Office Building
PW-7043 The Woods at Frenchman's Creek Yes Actual/360 No
PW-7064 Oklahoma City Industrial Yes Actual/360 No
PW-7119 Washingtonville Manor MHP Yes Actual/360 No
PW-7127 1485-1495 Davis Road Yes Actual/360 No
PW-7130 Ben White Business Park Yes Actual/360 No
PW-7141 Summercreek Apartments Yes Actual/360 No
PW-7146 Westbrook Towers Yes Actual/360 No
PW-7166 Cobblestone Apartments Yes Actual/360 No
PW-7170 O'Connor Place Apartments Yes Actual/360 No
PW-7312 Plaza Park MHPs Yes Actual/360 No
PW-7312A Plaza MHP
PW-7312B Spring Valley MHP
PW-7312C Blair MHP
PW-7395 Red Lion Apartments Yes Actual/360 No
PW-7424 St. Pete Beach Apartments Yes Actual/360 No
PW-7562 401 N. Broad Street Yes Actual/360 No
PW-7710 Peachtree Village Mobile Home Park Yes Actual/360 No
PW-7781 Sherwood Lane Apartments Yes Actual/360 No
PW-7789 Lexus Training Center Yes Actual/360 No
PW-7905 Blue Cross Blue Shield Building Yes Actual/360 No
PW-7958 1399 Madison Building Yes Actual/360 No
PW-8028 Tops Appliance Building Yes Actual/360 No
PW-8064 Office Max Yes Actual/360 No
PW-8202 First American Building Yes Actual/360 No
PW-8313 Crossings Apartments Yes Actual/360 No
PW-8352 Helix Building Yes Actual/360 No
PW-8703 Virginia Apartment Portfolio Yes Actual/360 No
PW-8703A Norport Apartments
PW-8703B Colonial Court
PW-8703C Lee Hall
PW-8703D River Drive Apartments
PW-7942 Bend River Mall Yes Actual/360 No
PW-6410 Gateway Plaza Yes Actual/360 No
PW-8085 Pepperwood Apartments Yes Actual/360 No
PW-8763 Sunset Hills Apartments Yes Actual/360 No
PW-7790 Smithtown Bypass Yes Actual/360 No
PW-8694 Eckerd's Building Yes Actual/360 No
PW-6232 310 Merrick Road Yes Actual/360 No
</TABLE>
A-1
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE OF PAINE WEBBER REAL ESTATE SECURITIES, INC.
In connection with the sale, assignment and transfer of certain
mortgage loans (collectively, the "Mortgage Loans") by Paine Webber Real Estate
Securities, Inc. (the "Mortgage Loan Seller") to Merrill Lynch Mortgage
Investors Inc. (the "Purchaser") pursuant to the Mortgage Loan Purchase
Agreement dated as of November 1, 1999 (the "Mortgage Loan Purchase Agreement")
between the Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller
hereby certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Purchase Agreement are true and correct in
all material respects at and as of the date hereof with the same effect as
if made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the Mortgage
Loan Purchase Agreement and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or
satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the [__]th day of [__] 1999.
PAINE WEBBER REAL
ESTATE SECURITIES, INC.
By:
------------------------------------
Name:
Title:
B-1
<PAGE>
EXHIBIT C
[Letterhead of [COUNSEL]]
[CLOSINGDATE]
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase Agreement dated as of November 1, 1999 between
Merrill Lynch Mortgage Investors Inc. and Paine Webber Real Estate
Securities Inc. (the "Agreement")
Ladies and Gentlemen:
I am the counsel to Paine Webber Real Estate Securities Inc., a
Delaware corporation (the "Company"), and, in such capacity, I am familiar with
the affairs of the Company.
I am providing this opinion in connection with the sale by the
Company to Merrill Lynch Mortgage Investors Inc. of various commercial and
multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase Agreement (the "Agreement").
Terms used herein, but not otherwise defined herein, shall have the meanings
ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of ______, and I express no
opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
C-1
<PAGE>
Based on the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, is duly
qualified as a [foreign] corporation in good standing in the State of New
York, with full corporate power and authority to own its assets and
conduct its business, to execute, deliver and perform the Agreement and
all the transactions contemplated thereby, including but not limited to,
the power and authority to sell, assign and retransfer the Mortgage Loans
in accordance with the Agreement and the Company has taken all necessary
action to authorize the execution, delivery and performance of the
Agreement by it, and the Agreement has been duly authorized, executed and
delivered by it.
2. The Agreement and all of the obligations of the Company under the
Agreement are valid, legal and binding obligations of the Company
enforceable against the Company in accordance with the terms of the
Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by public policy considerations,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of the
provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company and
the performance of its obligations under the Agreement will not conflict
with any provision of any law or regulation to which the Company is
subject, or conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any of the Company's
organizational documents or, to my knowledge, any agreement or instrument
to which the Company is a party or by which it is bound, or any order or
decree applicable to the Company, result in the creation or imposition of
any lien on any of the Company's assets or property, in each case which
would materially and adversely affect the ability of the Company to carry
out the transactions contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in any
court or by or before any other government agency or instrumentality which
would materially and adversely affect the validity of the Mortgage Loans
or the ability of the Company to carry out the transactions contemplated
by the Agreement.
5. To my knowledge, the Company is not in default with respect to
any order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Agreement.
C-2
<PAGE>
6. To my knowledge, no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Company or compliance by the Company with
the Agreement or the consummation of the transactions contemplated by the
Agreement, other than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees
hereof in connection with the transaction referred to herein. This letter may
not be relied upon, used, quoted, circulated or otherwise referred to by any
other person or for any other purpose without my prior written approval. This
opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
<PAGE>
Schedule A
Paine Webber Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
ORIX Real Estate Capital Markets, LLC
1717 Main Street, Suite 1400
Dallas, Texas 75201
Merrill Lynch Mortgage Investors Inc.
World Financial Center
New York, New York 10281
PaineWebber Incorporated
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Duff & Phelps Credit Rating Co.
17 State Street, 12th Fl.
New York, New York 10004
Standard & Poor's
55 Water Street, 41st Fl.
New York, New York 10041
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21004
C-4
<PAGE>
EXHIBIT D
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO EACH MORTGAGE LOAN
The following are exceptions to the representations and warranties made by
the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Schedule I of this Agreement. The item number indicates the subsection number
where such representation or warranty appears in Schedule I of this Agreement.
D-1
<PAGE>
REVISED as of NOVEMBER 4,1999
PaineWebber Exceptions to Loan Representations and Warranties.
The following two loans are exceptions to the representation regarding "Single
Purpose Borrower":
o Loan 7781 - which has an original balance of $723,000 is not a single
purpose entity. PaineWebber did not require an SPE due to the small
balance of the mortgage loan.
o Loan 7710 - which has an original balance of $1,925,000 is not a single
purpose entity. The borrower is an individual.
The following two are exceptions to the representation regarding "No
Additional Indebtedness":
Mortgage loan 7710 and 7781 are not single purpose entities. Therefore, those
borrowers may obtain unsecured debt in the future.
The following three loans are exceptions to the representation
regarding "Environmental Matters":
o Mortgage Loan 7781 with an original balance of $723,000 did not have a
Phase I performed but instead a "Transaction Screen"
o Mortgage Loan 8085 with an original balance of $1,000,000 did not have a
Phase I performed but instead a "Transaction Screen"
The following loan is an exception to the representation regarding
"Application of Insurance and Condemnation Proceeds":
Mortgage Loan 7562 with an original balance of $6,700,000.
o PaineWebber has financed the fee interest which is subject to an operating
lease.
o Condemnation proceeds shall be first paid to the fee owner in the amount
of $3,500,000 with any remaining balance divided equally between fee owner
and the operating tenant.
o It should be noted that the appraised value of the property, unencumbered
by the operating lease, is $50,000,000.
The following loan is an exception to the representation regarding
"ground leases": Mortgage Loan 7958 with an original balance of $2,100,000.
o Lender has a lien on both the fee and the leasehold estates. The "ground
lease" extends 15 years beyond the Anticipated Repayment Date.
********************************************************************************
The following loan is an exception to the representation regarding "ground lease
rent acceleration":
Mortgage Loan 7958 with an original balance of $2,100,000.
Lender has a lien on both the fee and the leasehold estates. The "ground lease",
which is in place as part of a tax abatement program, requires basic rent of
$100 per annum through December 31, 2010. Thereafter, basic rent has the
potential to increase as the rent required
D-2
<PAGE>
shall be the then current real estate taxes as of December 31, 2010 less the
amount of $10,698.24.
********************************************************************************
The following loans have exceptions to the standard non-recourse
carveout language:
o The following loans do not have "warm bodies" as indemnitors for the
Environmental Indemnity Agreement: Loan 7781
********************************************************************************
The following two loans allow for a one-time pre-approved transfer:
Loan 7905 (Blue Cross Blue Shield Building) with an original loan balance of
$25,300,000
Loan 8202 (First American Building) with an original loan balance of $18,588,000
D-3
<PAGE>
Schedule I
Schedule I
Mortgage Loan Seller's representations and warranties as to the Mortgage Loans
I-1
<PAGE>
PaineWebber
Schedule I
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is true, complete
and accurate in all material respects as of the Cut-off Date.
(ii) Representations and Warranties Remain True. The Mortgage Loan Seller
has not taken any action that would cause the representations and
warranties made by each Mortgagor under the related Mortgage Loan
not to be true. The Mortgage Loan Seller has no knowledge that the
material representations and warranties made by the Mortgagor in
each Mortgage Loan are not true in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller, Originator or Mortgagor.
Neither the Mortgage Loan Seller, nor, to the Mortgage Loan Seller's
best knowledge, (1) any originator other than the Mortgage Loan
Seller or (2) the Mortgagor, committed any fraudulent acts during
the origination process of any Mortgage Loan.
(iv) Legal, Prudent and Proper. (A) With respect to each Mortgage Loan
that the Mortgage Loan Seller originated, the origination of such
Mortgage Loan is in all material respects legal, proper and prudent
in accordance with customary industry standards utilized by prudent
institutional and commercial mortgage lenders and (B) to the best of
the Mortgage Loan Seller's knowledge, (1) the origination of each
Mortgage Loan purchased by the Mortgage Loan Seller and (2) the
servicing and collection of each Mortgage Loan is in all material
respects legal, proper and prudent in accordance with customary
industry standards utilized by prudent institutional and commercial
mortgage lenders or loan servicers as appropriate.
(v) Mortgage Loan Seller's Title to Mortgage Loans. Immediately prior to
the sale of the Mortgage Loan to the Depositor, the Mortgage Loan
Seller had good and marketable title to and was the sole owner and
holder of each Mortgage Loan, and the assignment validly transferred
its ownership of the Mortgage Loan, free and clear of any and all
liens, pledges and other encumbrances (other than the Mortgage Loan
Seller's obligation to repurchase defective Mortgage Loans). Each of
the Mortgage Note and the Mortgage is properly endorsed or assigned,
respectively, to the Purchaser (or the Trustee, as its designee) or
in blank (which the Trustee or its designee is authorized to
complete and, as applicable, to file in the appropriate filing
office) and each such endorsement or assignment, respectively, is
genuine.
(vi) No Delinquency. No monthly payment of principal of or interest on
any Mortgage Loan has been more than 30 days delinquent since
origination (without giving effect to any grace period) and as of
the Cut-off Date for
I-2
<PAGE>
such Mortgage Loan, no monthly payment of principal of or interest
on such Mortgage Loan is 30 or more days delinquent.
(vii) No Default. There is no material default, breach, violation or event
of acceleration existing under the related Mortgage or Mortgage
Note, and to the Mortgage Loan Seller's knowledge, there is no event
(other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or
cure period, would constitute such a default, breach, violation or
event of acceleration.
(viii) No Modification or Release. Since origination, such Mortgage Loan
has not been modified, altered, satisfied, canceled, subordinated or
rescinded, with the exception of any modification, alteration,
satisfaction, cancellation, subordination or rescission specifically
disclosed in a written instrument that (A) was entered into prior to
the Cut-off Date, (B) has been recorded in the applicable public
recording office if necessary to maintain the priority of the lien
of the related Mortgage and related Security Agreements, if any, and
(C) is being delivered to the Trustee or Custodian as part of the
related Mortgage File. No material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage, in
each case, in any manner which materially and adversely affects the
use or operation of the Mortgaged Property, the value of the
Mortgage Loan or materially interferes with the security intended to
be provided by such Mortgage.
(ix) No Insolvency. To the knowledge of the Mortgage Loan Seller, neither
the Mortgagor nor any guarantor is a debtor in any state or federal
bankruptcy or insolvency proceeding or any regulatory proceeding.
(x) No Proceedings. To the knowledge of the Mortgage Loan Seller, as of
the Closing Date, there is no pending action, suit or proceeding,
arbitration or governmental investigation against a Mortgagor or
Mortgaged Property, an adverse outcome of which would materially and
adversely affect such Mortgagor's ability to perform under the
related Mortgage Loan.
(xi) Single-Purpose Borrower. (A) Except as set forth on Exhibit D
attached hereto, the Mortgagor is a single purpose entity, (B) the
Mortgage Loan Seller has no knowledge that the Mortgagor is not a
single purpose entity, and (C) the Mortgagor is organized under the
laws of a state, territory or district of the United States. For
purposes of this representation, "single-purpose entity" shall mean
an entity, other than an individual, the organizational documents of
which limit its purpose to owning and operating a single property or
group of properties, and provides that it shall not engage in any
business unrelated to such property and its financing, have any
assets other than those related to its interest in the related
Mortgaged Property or its financing, or have any
I-3
<PAGE>
indebtedness other than as permitted under the related Mortgage
Loan, and with respect to a Mortgagor of a Mortgage Loan in excess
of $15 million, provides that it shall maintain its own books,
records and accounts, in each case which are separate and apart from
the books, records and accounts of any other person, conduct its
business in its own name, not guarantee or assume the debts or
obligations of any other person, not commingle its assets or funds
with those of any other person, transact business with affiliates on
an arm's length basis and hold itself out as being a legal entity,
separate and apart from any other person.
(xii) Mortgagor Is The Sole Owner of Interest in Lease Payments. No person
other than the Mortgagor owns any interest in any payments due under
the leases relating to the Mortgaged Property that is superior to or
of equal priority with the Mortgage Loan Seller's interest therein.
(xiii) Defeasance; No REMIC Disqualification. With respect to any Mortgage
Loan that pursuant to the Mortgage Loan Documents can be defeased,
(A) the Mortgage Loan cannot be defeased within two years of the
Closing Date and such defeasance must otherwise comply with the
REMIC Provisions, (B) the Mortgagor can pledge only United States
government securities (within the meaning of section 2(a)(16) of the
Investment Company Act of 1940) as the substitute collateral, in an
amount sufficient to make all scheduled payments under the Mortgage
Note when due, as certified by a independent certified public
accountant, and (C) the Mortgagor can be required by the Master
Servicer to establish that the release of the lien is to facilitate
the disposition of the Mortgaged Property or is in connection with
some other customary commercial transaction and not as part of an
arrangement to collateralize a REMIC offering with obligations that
are not real estate mortgages.
(xiv) REMIC Qualification. The Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulation Section
1.860G-2(f)(2) that treats a defective obligation as a "qualified
mortgage" or any substantially similar successor provision) and any
and all Percentage Premiums and Yield Maintenance Charges constitute
"customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
(xv) Existing Indebtedness. There are no subordinate or pari passu
Mortgages encumbering the related Mortgaged Property, no preferred
equity interests held by the Mortgage Loan Seller or mezzanine debt
related to such Mortgaged Property.
(xvi) No Additional Indebtedness. Except as set forth in Exhibit D, the
Mortgage Loan prohibits the related Mortgagor from mortgaging or
I-4
<PAGE>
otherwise encumbering the Mortgaged Property and from carrying any
additional indebtedness except in connection with (A) trade debt and
equipment financings in the ordinary course of Mortgagor's business
and (B) liens arising by operation of law that are contested in
accordance with the terms of the Mortgage Loan.
(xvii) Annual Reports. The Mortgage Loan requires the related Mortgagor to
provide annual operating statements, rent rolls, and other
information that the holder of the Mortgage Loan may reasonably
request in connection with the related Mortgagor and the related
Mortgaged Property.
(xviii) Proceeds Fully Disbursed. The proceeds of the Mortgage Loan have
been fully disbursed and there is no requirement for future advances
thereunder and the Mortgage Loan Seller covenants that it will not
make any future advances under the Mortgage Loan to the related
Mortgagor. No advance of funds (other than the initial disbursement
of proceeds) has been made by the Mortgage Loan Seller, any
affiliate or any third party originator to the related Mortgagor
(other than mezzanine debt that is set forth on Exhibit D) and no
funds have been received from or on behalf of any person other than
the related Mortgagor for, or on account of, payments due on the
Mortgage Loan.
(xix) No Negative Amortization. Other than the ARD Loans, which may have
negative amortization from and after their respective Anticipated
Repayment Dates, the Mortgage Loan does not provide for a shared
appreciation or equity participation feature, any other contingent
or additional interest feature or the negative amortization of
interest.
(xx) Whole Loan. The Mortgage Loan is a whole loan and not a
participating interest in a mortgage loan. Neither Mortgage Loan
Seller nor any affiliate thereof has any obligation to make any
capital contributions to the Mortgagor under the Mortgage Loan other
than contributions made on or prior to the closing date.
(xxi) Cross-Collateralization. The Mortgage Loan is not
cross-collateralized with any mortgage loan that is not included in
the Trust.
(xxii) Conditions for Releases of Mortgaged Property. Except in connection
with Mortgage Loans that are cross-collateralized and Mortgage Loans
that are secured by more than one Mortgaged Property, the Mortgage
Loan does not require the Mortgage Loan Seller to release any
portion of the related Mortgaged Property from the lien of the
related Mortgage except upon (A) payment in full of all amounts due
under the related Mortgage Loan, (B) releases of unimproved
out-parcels, (C) releases of portions of the Mortgaged Property that
will not have a material adverse effect on the adequacy of the
remaining collateral for the Mortgage Loan
I-5
<PAGE>
or (D) substitution of government securities for such Mortgaged
Property in a defeasance complying with Treasury
Regulations Section 1.860G-2(a)(8).
(xxiii) Documents Valid. Each related Mortgage Note, Mortgage, Assignment of
Leases (if any) and other agreement executed in connection with each
Mortgage Loan is the legal, valid and binding obligation of the
related Mortgagor, enforceable in accordance with its terms, except
as such enforcement may be limited by applicable bankruptcy,
insolvency, receivership, reorganization, moratorium, redemption or
other laws affecting the enforcement of creditors' rights generally
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(xxiv) Assignments of Leases Create First Priority Security Interest.
Unless the related Mortgaged Property is owner occupied, the
Mortgage File for such Mortgage Loan contains an Assignment of
Leases, either as a separate instrument or incorporated into the
related Mortgage, which creates in favor of the holder thereof a
valid, collateral or first priority assignment of, or a valid first
priority security interest in, certain rights under the related
leases, subject only to a license granted to the related Mortgagor
to exercise certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate the related
Mortgaged Property. Each related assignment of Mortgage from the
Mortgage Loan Seller to the Trustee and any related reassignment of
Assignment of Leases, if any, or assignment of any other agreement
executed in connection with each Mortgage Loan, from the Mortgage
Loan Seller to the Purchaser (or the Trustee as its assignee) has
been duly authorized, executed and delivered by the Mortgage Loan
Seller, is in recordable form, as appropriate, in order to validly
and effectively convey the Mortgage Loan Seller's interest therein
to the Purchaser (or the Trustee as its assignee) and constitutes
the legal, valid, binding and enforceable assignment from the
Mortgage Loan Seller to the Purchaser (or Trustee as its assignee)
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by
general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(xxv) Mortgages and Security Agreements Create First Lien. The Mortgage is
a valid and enforceable first lien on the related Mortgaged Property
subject only to (A) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the
current use of the Mortgaged
I-6
<PAGE>
Property or the security intended to be provided by such Mortgage or
with the related Mortgagor's ability to pay its obligations when
they become due or the value of the Mortgaged Property and (C) the
exclusions and exceptions (general and specific) set forth in a
lender's title insurance policy, none of which, individually or in
the aggregate, materially interferes with the current use of the
related Mortgaged Property or materially interferes with the
security intended to be provided by such Mortgage or with the
related Mortgagor's ability to pay its obligations when they become
due or the value of the Mortgaged Property. As of the date of
origination of such Mortgage Loan and as of the Closing Date, such
Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the lien of the
related Mortgage, except those which are insured against by a
lender's title insurance policy. Any Security Agreement, chattel
mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a valid
and enforceable first lien on and first priority security interest
in the personal property described therein (including hotel revenues
with respect to a Mortgaged Property that is operated as a hotel),
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by
general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(xxvi) No Defenses to Payment. The Mortgage Loan is not subject to any
right of rescission, set-off, abatement, diminution, valid
counterclaim or defense (except with respect to any excess interest
on an ARD Loan after the related Anticipated Repayment Date and any
Default Interest, late charges, Prepayment Premiums and Yield
Maintenance Charges) including the defense of usury, available to
the related Mortgagor with respect to such Mortgage Note, Mortgage,
Assignment of Leases and other agreements.
(xxvii) Mortgage Loan Documents Comply With Law. The terms of each of the
Mortgage Loan Documents comply in all material respects with all
requirements of applicable local, state or federal law.
(xxviii) Customary Provisions. The related Mortgage contains customary and
enforceable (subject to bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights
generally or by general principles of equity) provisions so as to
render the rights and remedies of the holder thereof adequate for
the realization against the Mortgaged Property of the benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, and there is no exemption available to the
Mortgagor which would interfere with such right to
I-7
<PAGE>
foreclose (except as may be imposed by bankruptcy, insolvency,
moratorium, redemption or other similar laws affecting creditors'
rights generally or by general principles of equity).
(xxix) Mortgagor's Interest in Mortgaged Property. The interest of the
related Mortgagor in the related Mortgaged Property consists of a
fee simple estate and/or a leasehold estate in all of the real
property constituting a part of the Mortgaged Property.
(xxx) Recorded Instruments. The Mortgage has been properly recorded in the
applicable jurisdiction and the assignment of Mortgage for each
Mortgage Loan is in recordable form for the applicable jurisdiction
and constitute the legal, valid and binding assignment of such
Mortgage Loan. The full amount of the Mortgage has been recorded on
each related Mortgaged Property, and all applicable mortgage
recording taxes have been paid.
(xxxi) UCC Financing Statements. A Form UCC-1 financing statement has been
submitted for filing or recordation with respect to personal
property constituting a part of the related Mortgaged Property as to
which a security interest can be perfected by filing (including
hotel revenues with respect to a Mortgaged Property that is operated
as a hotel), and a copy of each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement has been executed by the Mortgage
Loan Seller in blank which the Trustee or its designee is authorized
to complete and to file in the filing office in which such financing
statement was filed (and but for the insertion of the name of the
assignee and any related filing information which is not yet
available to the Mortgage Loan Seller is in suitable form for
filing).
(xxxii) Collateral. The Mortgage Note is not and has not been secured by any
collateral other than collateral covered by the related Mortgage,
the related Assignment of Leases (if any) and any other agreement
executed in connection with the origination of the Mortgage Loan.
(xxxiii) Borrower's Licenses and Permits. As of the date of origination of
each Mortgage Loan, and, to the Mortgage Loan Seller's knowledge, as
of the Cut-off Date, each related Mortgagor was in possession of all
material licenses, permits and other authorizations necessary and
required by all applicable laws for the conduct of its business and
all such licenses, permits and authorizations were valid and in full
force and effect.
(xxxiv) No Usury Violation; Compliance with Law. The Mortgage Rate
(exclusive of any excess interest on an ARD Loan after the related
Anticipated Repayment Date and any Default Interest, late charges,
Prepayment Premiums and Yield Maintenance Charges) of each
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Mortgage Loan complied as of the date of origination with, or is
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury; and any and all other requirements
of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit
opportunity or disclosure laws, applicable to each Mortgage Loan
have been complied with as of the date of origination of each
Mortgage Loan.
(xxxv) Acceleration Provisions. Each related Mortgage or loan agreement
contains provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage Loan, the related Mortgaged
Property, or any controlling interest therein in the Mortgagor, is
directly or indirectly transferred or sold (other than transfers for
estate planning purposes, other purposes where no change of control
occurs or such transfers which have been pre-approved to transferees
which otherwise have met the Mortgage Loan Seller's underwriting
criteria) or encumbered in connection with subordinate financing
(other than any indebtedness described in clauses (xv) and (xvi)
above) and each related Mortgage or loan agreement prohibits the
pledge or encumbrance of the Mortgaged Property without the consent
of the holder of the Mortgage Loan. The Mortgage or loan agreement
requires the obligor to pay all reasonable fees and expenses
associated with securing the consent of the holder of the Mortgage
Loan.
(xxxvi) Non-Recourse Mortgage Loan. The Loan Documents for the Mortgage Loan
provide that such Mortgage Loan is non-recourse to the related
parties thereto except for certain acts including the fraud, willful
misconduct or material misrepresentation by the related Mortgagor
and/or its affiliates, in which case, except as specified in Exhibit
D, either (A) such Mortgage Loan shall become a recourse obligation
of another person, or (B) another person shall assume liability for
any losses incurred by the Mortgage Loan Seller or its assignee due
to such acts. Additionally, the Mortgage Loan Documents for the
Mortgage Loan provide that, except as specified in Exhibit D,
another person shall assume liability for any losses incurred by the
Mortgage Loan Seller or its assignee due to (1) the misapplication
or misappropriation of rents, insurance proceeds or condemnation
awards, (2) acts of waste and (3) breaches of any environmental
covenants contained in the related Mortgage Loan Documents.
(xxxvii) Mortgages Secured by Deeds of Trust. With respect to each Mortgage
which is a deed of trust, a trustee which, to the knowledge of the
Mortgage Loan Seller is duly qualified under applicable law to serve
as such, has been properly designated and currently so serves and is
named in the deed of trust or has been substituted in accordance
with applicable
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law, and except in connection with a trustee's sale after a default
by the related Mortgagor or in connection with the release of the
related Mortgaged Property, no fees are or will become payable to
such trustee.
(xxxviii) Escrows. All amounts required to have been deposited with the
Mortgage Loan Seller by each Mortgagor under the Mortgage Loan
Documents have been deposited and are in the possession or under the
control of the Mortgage Loan Seller or its agent. All of the
Mortgage Loan Seller's interest in these amounts will be conveyed to
the Trust. All requirements for escrows are memorialized in one or
more written agreements that are contained within the Mortgage File
for such Mortgage Loan.
(xxxix) Property Condition. To the Mortgage Loan Seller's knowledge, based
upon a site inspection conducted in connection with the origination
of the Mortgage Loan and a review of the related engineering report,
each related Mortgaged Property is free and clear of any material
damage that would affect materially and adversely the use or
operation or value of such Mortgaged Property as security for the
Mortgage Loan; the Mortgage Loan Seller has received no actual
notice of (A) any proceeding pending for the total or partial
condemnation of such Mortgaged Property or (B) any damage to such
Mortgaged Property that materially and adversely affects the use or
operation or value of such Mortgaged Property.
(xl) No Delinquent Charges. There are no delinquent taxes, ground rents,
insurance premiums or assessments (including, without limitation,
assessments payable in future installments or other similar
outstanding charges, water charges or sewer rents) affecting the
Mortgaged Property or such amounts, if existing and in dispute, have
been escrowed or covered by a letter of credit. For purposes of this
representation, an obligation shall become "delinquent" on the date
on which both of the following conditions are satisfied: (A)
interest and/or penalties are due with respect to the unpaid amount
and (B) enforcement action can be taken by the related taxing
authorities.
(xli) No Encroachments. All improvements included in any MAI appraisals
are within the boundaries of the related Mortgaged Property, with
the exception of de minimis encroachments, and the Mortgage Loan
Seller has obtained title insurance insuring against any losses
arising from such de minimis encroachments. No improvements on
adjoining properties encroach upon the Mortgaged Property except for
de minimis encroachments or encroachments as to which the Mortgage
Loan Seller has obtained title insurance coverage insuring against
losses arising from such encroachments.
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(xlii) Mortgaged Property Compliance with Zoning Laws Etc. The improvements
located on or forming part of each Mortgaged Property materially
comply with applicable zoning and building laws, ordinances and
regulations, or constitute a legal non-conforming use or structure
or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the use or operation or
value of the related Mortgaged Property.
(xliii) Permanent Financing. The Mortgage Loan was not originated for the
purpose of financing the construction of uncompleted improvements on
the related Mortgaged Property.
(xliv) Property Inspections. The Mortgage Loan Seller has inspected or
caused to be inspected each related Mortgaged Property within the
past twelve months.
(xlv) Access. Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, is served by public utilities and services
generally available in the surrounding community and otherwise
appropriate for the use in which the Mortgaged Property is currently
being utilized, and is a separate tax parcel.
(xlvi) First Priority Lien Insured. The lien of each related Mortgage is a
first priority lien on the fee or leasehold interest of the related
Mortgagor in the original principal amount of the related Mortgage
Loan or allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related Mortgage) and
is insured by an ALTA lender's title insurance policy or its
equivalent (or a binding commitment therefor), insuring the Mortgage
Loan Seller, its successors and assigns in the original principal
amount of the Mortgage Loan, subject only to (A) the lien of current
real property taxes, ground rents, water charges, sewer rents and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations when they become due or
the value of the Mortgaged Property and (C) the exclusions and
exceptions (general and specific) set forth in such policy, none of
which, individually or in the aggregate, materially interferes with
the current use of the Mortgaged Property or materially interferes
with the security intended to be provided by such Mortgage or with
the related Mortgagor's ability to pay its obligations when they
become due or the value of the Mortgaged Property. The premium for
such policy was paid in full; such policy was issued by a title
insurance company licensed
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to issue policies in the state in which the related Mortgaged
Property is located and is assignable to the Purchaser and the
Trustee without the consent of or any notification to the insurer,
and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have been
made under such policy and the Mortgage Loan Seller has not
undertaken any action or omitted to take any action, and has no
knowledge of any such act or omission, which would impair or
diminish the coverage of such policy. Such policy contains no
exclusions for or affirmatively insures (except for any Mortgaged
Property located in jurisdictions where such affirmative insurance
is not available) (a) access to a public road, and (b) that the area
shown on the survey is the same as the property legally described in
the Mortgage.
(xlvii) Environmental Matters. Except as specified on Exhibit D, a Phase I
environmental report, and with respect to certain Mortgage Loans, a
Phase II environmental report, was conducted by a reputable
environmental engineer in connection with such Mortgage Loan within
12 months preceding the Closing Date, which report did not indicate
any material non-compliance or material existence of hazardous
material or, if any material non-compliance or material existence of
hazardous materials was indicated in any such report, the remedial
action recommended to be taken in the report has been taken, or
funds sufficient to cover any recommended remedial action have been
escrowed by the related Mortgagor and held by the Mortgage Loan
Seller under the related Mortgage has the obligation to remedy such
condition or circumstance. To the best of the Mortgage Loan Seller's
knowledge, in reliance on such environmental reports, each Mortgaged
Property is in material compliance with all applicable federal,
state and local laws pertaining to environmental hazards other than
as disclosed in such environmental reports, and to the best of the
Mortgage Loan Seller's knowledge, no notice of violation of such
laws has been issued by any governmental agency or authority, except
as indicated in certain environmental reports; the Mortgage Loan
Seller has not taken any action which would cause the Mortgaged
Property not to be in compliance with all federal, state and local
laws pertaining to environmental hazards. Each Mortgagor represents
and warrants in the related Mortgage Loan Documents that except as
set forth in certain environmental reports and to the best of its
knowledge it has not used, caused or permitted to exist and will not
use, cause or permit to exist on the related Mortgaged Property any
hazardous materials in any manner which violates federal, state or
local laws, ordinances, regulations, orders, directives or policies
governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials.
Each Mortgagor (or an affiliate thereof) has agreed to indemnify,
defend and hold the Mortgage Loan
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Seller and its successors and assigns harmless from and against any
and all losses, liabilities, damages, injuries, penalties, fines,
expenses, and claims of any kind whatsoever (including attorney's
fees and costs) paid, incurred or suffered by, or asserted against,
any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in
connection with such Mortgage Loan.
(xlviii) Additional Insurance. The Mortgage Loan requires that the Mortgaged
Property be covered by the following insurance policies naming the
Mortgagee and its successors and assigns as additional insured, in
an amount at least equal to the lesser of the value of the
replacement cost of the related Mortgaged Property or the principal
balance of the related Mortgage Loan, and sufficient to avoid the
operation of any co-insurance provisions: (A) fire and extended
perils (included within the classification "All Risk of Physical
Loss"), (B) 12 months (or 18 months for a Mortgaged Property which
is not an office, retail, self-storage, industrial, multifamily,
mobile home park or mixed use of the foregoing) of business
interruption or rental loss insurance, (C) flood insurance if, based
solely on a flood zone certification or a survey of the related
Mortgaged Property, the property improvements are located in a
100-year flood plain, or if any portion of the improvements on the
Mortgaged Property is located in a federally designated flood area
"A" and (D) comprehensive general liability insurance in amounts
generally required by institutional lenders for similar properties.
All premiums on such insurance policies required to be paid as of
the Cut-off Date have been paid; such insurance policies may not be
terminated or canceled without 30 days prior written notice to the
insured (for defaults other than non-payment, for which there is a
minimum of 10 days written notice of cancellation) and no such
notice has been received by the insured. The insurance provider of
each such insurance policy has an A.M. Best's rating of at least
"A:X" or a claims paying ability rating of at least "A" from
Standard & Poor's or DCR, or its equivalent. Each related Mortgage
Loan obligates the related Mortgagor to maintain all such insurance
and, at such Mortgagor's failure to do so, authorizes the mortgagee
to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor.
(xlix) Application of Insurance and Condemnation Proceeds. Except as
specified in Exhibit D, and subject to clause lxi(K) with respect to
ground lease properties, any insurance proceeds in respect of a
casualty loss or taking, will be applied either to (A) the repair or
restoration of all or part of the related Mortgaged Property or (B)
to the payment of the outstanding principal balance of such Mortgage
Loan together with any accrued interest thereon, except that in the
case of a ground-leased property casualty and condemnation proceeds
are required to be paid first to the owner of the fee interest in
the related property in accordance
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with terms of the related ground lease and then in accordance with
the related Mortgage.
(l) Terms of Mortgage. The Mortgage Loan is directly secured by a
Mortgage on a commercial, industrial, self-storage, health-care
related, retail, office, fitness center, mixed use, hospitality,
mobile home park or multifamily residential property, and either (A)
substantially all of the proceeds of the Mortgage Loan were used to
acquire, improve or protect an interest in such real property which,
as of the origination date, was the sole security for such Mortgage
Loan (unless the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at a
time when the Mortgage Loan was not in default or default with
respect thereto was not reasonably foreseeable) or (B) the fair
market value of such real property was at least equal to 80% of the
principal amount of the Mortgage Loan (1) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a
deemed exchange under Section 1001 of the Code at a time when the
Mortgage Loan was not in default or default with respect thereto was
not reasonably foreseeable, at the date of the last such
modification) or (2) at the Closing Date; provided that the fair
market value of the real property interest must first be reduced by
(I) the amount of any lien on the real property interest that is
senior to the Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computation described in clauses
(1) and (2) shall be made on an aggregate basis) and (II) a
proportionate amount of any lien that is in parity with the Mortgage
Loan (unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (B)(1) and (B)(2) shall be made on
an aggregate basis).
(li) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property, which appraisal is signed by a qualified
appraiser, who, to the best of the Mortgage Loan Seller's knowledge,
had no interest, direct or indirect, in the Mortgaged Property or
the Mortgagor or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan; the appraisal and appraiser both satisfy the
requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, all as in effect on the date the Mortgage Loan
was originated.
(lii) [Intentionally Omitted].
(liii) [Intentionally Omitted].
(liv) ARD Loans. If such Mortgage Loan is an ARD Loan it provides that:
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(A) its Mortgage Rate will increase by no more than two percentage
points from and after its Anticipated Repayment Date;
(B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan;
(C) either (a) on the Closing Date, each ARD Loan will have a
lockbox in place, or (b) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related
Mortgagor is required to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property shall
be deposited into a designated account controlled by the
Servicer;
(D) any cash flow from the related Mortgaged Property that is
applied to amortize an ARD Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in
excess of the monthly payment payable therefrom, be net of
budgeted capital expenditures and capital expenditures that
may be approved by the Servicer in accordance with the terms
of the Pooling and Servicing Agreement.
(E) each ARD Loan is being amortized as of the Cut-off Date and is
not currently subject to an interest-only period;
(F) the holder of each ARD Loan may not exercise any payment
default remedies if Mortgagor pays scheduled principal and
interest (at the related Mortgage Rate);
(G) The property manager cannot be removed for the sole reason
that the ARD Loan continues to be outstanding after its
Anticipated Repayment Date.
(lv) Health Care Facilities. If the Mortgage Loan is secured by a nursing
home or skilled living facility:
(A) To the best of the Mortgage Loan Seller's knowledge, the
health care facility located on the related Mortgaged Property
and the related owner and/or operator with respect to such
facility had all material certificates, licenses and permits
required by applicable law for the operation of such facility
for its current use and, to the extent that such facility
participates in Medicaid, Medicare, or any other similar third
party payor program, the facility, the owner and/or the
operator possesses current provider agreements for such
programs, appropriate for the degree of care administered at
each facility.
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(B) To the best of the Mortgage Loan Seller's knowledge, the
related owner or operator, with respect to the related
Mortgaged Property or its operation of the related Mortgaged
Property, was in compliance in all material respects with all
applicable laws, regulations, quality and safety standards and
requirements of the applicable state department of health, and
the Mortgage Loan Documents require that so long as the
Mortgage Loan remains outstanding the related Mortgaged
Property shall be operated in compliance in all material
respects with such applicable laws and requirements.
(C) The related Mortgage Loan Documents provide that:
(1) so long as the Mortgage Loan remains outstanding, the
related Mortgaged Property shall be operated in such a
manner that the licenses, permits and authorizations
shall remain in full force and effect,
(2) without the lender's consent, the licenses, permits and
authorizations may not be
(I) transferred to any location other than the
Mortgaged Property
(II) pledged as collateral for any other loan or
indebtedness
(3) so long as the related Mortgage Loan remains
outstanding, the Mortgagor may not without the lender's
consent
(I) rescind, withdraw, revoke, amend, modify,
supplement or otherwise alter the nature or scope
of the certificates, licenses and permits for the
related Mortgaged Property.
(II) amend or otherwise reduce the related Mortgaged
Property's authorized bed capacity and/or the
number of beds approved by the applicable state
department of health,
(III) replace or transfer all or any part of any related
Mortgaged Property's beds to an other site or
location or
(IV) terminate, materially modify, or materially amend
the operating lease or management contract in
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effect with regard to the related Mortgaged
Property.
(4) the licenses, permits and authorizations are held free from
restrictions or known conflicts which would materially impair
the use or operation of the Mortgaged Property, and are not
provisional, probationary or restricted in any way.
(D) since origination, the Mortgage Loan Seller has not received
notice that the related owner or related operator as the case
may be, has failed to file within the time permitted,
including any extensions thereof, all such Medicare, Medicaid
or other similar program cost reports;
(E) since origination, the Mortgage Loan Seller has not received
notice that either the related owner or operator, as the case
may be, with respect to the related Mortgaged Property, or its
operation of such Mortgaged Property, (A) is subject to a
material audit adjustment with respect to its participation in
any third-party payor program or (B) has been notified that
any managed care or other third-party payor program contract
is being or has been canceled, not renewed, or downgraded in
any material respect or that any such action is pending,
threatened, or contemplated.
(lvi) [Intentionally Omitted].
(lvii) Mortgage Loans Not Originated by Mortgage Loan Seller. With respect
to each Mortgage Loan originated by a correspondent of the Mortgage
Loan Seller and purchased or "table funded" by the Mortgage Loan
Seller in connection with a correspondent relationship with such
originator:
(A) such Mortgage Loan was underwritten substantially in
accordance with standards established by the Mortgage Loan
Seller, (which standards are in all material respects the same
as the underwriting standards for Mortgage Loans originated by
the Mortgage Loan Seller);
(B) such Mortgage Loan was originated pursuant to an ongoing,
standing relationship with the Mortgage Loan Seller;
(C) the closing documents (which include assignment documents
executed by the Mortgage Loan originator in favor of the
Mortgage Loan Seller at the time of the closing of the
Mortgage Loan) for the Mortgage Loan were prepared in
substantial compliance with forms approved by the Mortgage
Loan Seller, and reflect the Mortgage
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Loan Seller as the successor and assign to the Mortgage Loan
originator; and
(D) such Mortgage Loan either was actually funded by and assigned
to the Mortgage Loan Seller at the closing thereof, or was
funded initially by the Mortgage Loan originator at the
closing thereof and then acquired by the Mortgage Loan Seller
from such Mortgage Loan originator pursuant to its ongoing,
standing relationship with the Mortgage Loan Seller.
(lviii) Origination. Each Mortgage Loan originated by the Mortgage Loan
Seller was underwritten consistent in all material respects with the
standards of the Mortgage Loan Seller as then in effect and each
Mortgage Loan purchased by the Mortgage Loan Seller from a
third-party originator was underwritten consistent in all material
respects with prudent commercial mortgage conduit lending standards.
(lix) Waivers. The Mortgage Loan Seller and, to the Mortgage Loan Seller's
knowledge, any prior holder of the Mortgage Loan has not waived any
default, breach, violation or event of acceleration under the
related Mortgage or Mortgage Note. No foreclosure action or other
form of enforcement is or has been threatened or commenced with
respect to any Mortgage.
(lx) Qualification. To the extent required under applicable law as of the
Closing Date and necessary for the enforceability or collectibility
of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it held the Mortgage
Loan.
(lxi) Ground Leases. Except as specified in Exhibit D, with respect to any
Mortgage Loan where all or a material portion of the estate of the
related Mortgagor therein is a leasehold estate, based upon the
terms of the ground lease and any estoppel received from the ground
lessor, the Mortgage Loan Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee or its successors or assigns in a manner that
would adversely affect the security provided by the related
Mortgage. To the Mortgage Loan Seller's knowledge, there has
been no material change in the terms of the ground lease since
its recordation, except by any written instruments which are
included in the related Mortgage File;
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(B) The lessor under such ground lease has agreed in a writing
included in the related Mortgage File that the ground lease
may not be amended, modified, canceled or terminated without
the prior written consent of the Mortgage Loan Seller and its
successors and assigns unless the holder of the Mortgage Loan
fails to cure a Mortgagor ground lease default after
applicable notice and cure periods;
(C) Except as indicated on Exhibit D hereto, the ground lease has
an original term (or an original term plus one or more
optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the Mortgage Loan
Seller) that extends not less than 20 years beyond the
Maturity Date (or Anticipated Repayment Date) of the related
Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Mortgage Loan Seller, the ground
lease is not subject to any liens or encumbrances superior to,
or of equal priority with, the lien of the Mortgage (other
than any indebtedness described in clauses (xv), (xvi) and
(xxv)) and provides that it shall remain prior to any mortgage
or other lien on the ground lessor's fee interest);
(E) The ground lease is assignable to the Mortgage Loan Seller and
its successors and assigns under the related leasehold estate
without the consent of the lessor thereunder, and in the event
that such ground lease is so assigned, it is further
assignable by the Depositor and its successors and assigns
upon notice to (and such notice has been given), but without a
need to obtain the consent of the lessor;
(F) As of the closing date of the related Mortgage Loan, the
ground lease is in full force and effect, the Mortgage Loan
Seller has received no notice that any default beyond
applicable notice and grace periods has occurred, and there is
no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of
the ground lease;
(G) The ground lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default
by the lessee to the Mortgage Loan Seller or its assignee and
pursuant to such agreement, no notice given thereunder is
effective against the Mortgage Loan Seller (or its assignee)
unless a copy has been given to the Mortgage Loan Seller (or
its assignee) in the manner prescribed in the ground lease or
ancillary agreement;
(H) A Mortgage Loan Seller or its assignee is permitted a
reasonable opportunity (including, where necessary, sufficient
time to gain possession of the interest of the lessee under
the ground lease through legal proceedings, or to take other
action so long as the
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Mortgage Loan Seller or its assignee is proceeding diligently)
to cure any default under the ground lease which is curable
after the receipt of notice of any default before the lessor
may terminate the ground lease, and all rights of the
Mortgagor under such ground lease may be exercised by or on
behalf of the mortgagee.
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by an institutional investor. The lessor is not permitted to
disturb the possession, interest or quiet enjoyment of any
subtenant of the lessee in the relevant portion of the
Mortgaged Property subject to the ground lease for any reason,
or in any manner, which would materially and adversely affect
the security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the
Mortgage Loan Seller or its assignee or a trustee appointed by
it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest, except that in the case of
condemnation awards, the ground lessor may be entitled to a
portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking to
the related Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as provided
by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any
institutional investor, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the Mortgage Loan Seller
or its assignee as a result of any casualty loss or partial
condemnation, except to provide for an abatement of the rent
or otherwise in accordance with the standard provisions of the
related Mortgage;
(L) Provided that the Mortgage Loan Seller cures any defaults
which are susceptible of being cured, the lessor has agreed to
enter into a new
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<PAGE>
lease with the Mortgage Loan Seller upon termination of the
ground lease for any reason, including rejection of the ground
lease in a bankruptcy proceeding.
(M) Except as set forth in Exhibit D, the ground lease does not
permit any increase in the amount of rent payable by the
lessee thereunder during the term of the Mortgage Loan.
(lxii) Servicing. No person other than the Mortgage Loan Seller has been
granted or conveyed the right to service the Mortgage Loan or to
receive any consideration in connection therewith.
(lxiii) Borrower Concentration. As of the Closing Date, not more than 5% of
the aggregate outstanding principal amount of the Mortgage Loans
have the same Mortgagor or to the Mortgage Loan Seller's best
knowledge, have Mortgagors that are affiliates of each other.
(lxiv) Due Dates. The Mortgage Loan has a late charge which may be assessed
prior to the 15th day of the month.
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<PAGE>
Schedule II
Schedule II
List of Agreements under which the Mortgage Loan Seller acquired rights
in the Mortgage Loans as provided in Section 3.7 of this Agreement
Section 3.7
Schedule 2
<TABLE>
<CAPTION>
PW Loan #C- Property Name Correspondent Date of MLPA
- ----------- ------------- ------------- -------------
<C> <S> <C> <C>
7562 401 N. Board Street Aries Capital, Incorporated Aug-98
8763 Sunset Hills Apartments Aries Capital, Incorporated Aug-98
7790 Smithtown Bypass Aries Capital, Incorporated Aug-98
7781 Sherwood Lane Apartments Impac Funding Corporation 28-Jun-99
6132 Arlington Apartments Love Funding Corporation 23-Apr-99
6376 Shadowbrook Apartments Love Funding Corporation 23-Apr-99
7064 Oklahoma City Industrial Love Funding Corporation 23-Apr-99
8085 Pepperwood Apartments Suburban Capital Markets, Inc. 01-Jul-98
7170 O'Connor Place Apartments Suburban Capital Markets, Inc. 01-Jul-98
7424 St. Pete Beach Apartments ValuExpress II, LLC 16-Sep-97
7146 Westbrook Towers ValuExpress II, LLC 16-Sep-97
7166 Cobblestone Apartments ValuExpress II, LLC 16-Sep-97
7942 Bend River Mall Ward Cook, Inc. 26-Jun-98
8703 Virginia Apartment Portfolio HSA/Wexford Bancgroup, LLC 29-Jan-99
</TABLE>
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") dated as of
November 1, 1999, is between Merrill Lynch Mortgage Investors Inc., a Delaware
corporation (the "Purchaser"), and ORIX Real Estate Capital Markets, LLC, a
Delaware limited liability company (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer to the
Purchaser, subject to the terms and conditions set forth below, certain mortgage
loans (the "Mortgage Loans"), exclusive of a portion of the interest payments
payable thereon (the "Retained Interest") which are described in, and set forth
in, the mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as
Exhibit A.
The Purchaser intends to deposit the Mortgage Loans into a trust
fund (the "Trust Fund"), together with certain mortgage loans (the "Other
Mortgage Loans") purchased by the Purchaser pursuant to the Other Mortgage Loan
Purchase Agreements (as defined herein), the beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). The Trust Fund will be created and the Certificates will be
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of November 1, 1999, by and among Merrill Lynch
Mortgage Investors Inc., as depositor (the "Depositor"), ORIX Real Estate
Capital Markets, LLC, as master servicer (the "Master Servicer"), ORIX Real
Estate Capital Markets, LLC, as special servicer (the "Special Servicer"), and
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through Merrill Lynch,
Pierce, Fenner & Smith Incorporated and PaineWebber Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
November 4, 1999. The Purchaser intends to sell certain of the Certificates (the
"Publicly Offered Certificates") to Merrill Lynch, Pierce, Fenner & Smith
Incorporated and PaineWebber Incorporated (in such capacity, the "Underwriters")
on the Closing Date pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of November 1, 1999. The transactions contemplated by the
foregoing are referred to herein as the "Securitization Transaction".
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which
are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
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<PAGE>
ARTICLE I.
DEFINITIONS
Capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the Pooling and Servicing Agreement.
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the Other Mortgage Loans sold to the Purchaser by Merrill Lynch
Mortgage Capital, Inc. and Paine Webber Real Estate Securities Inc. pursuant to
the Other Mortgage Loan Purchase Agreements, or as otherwise separately agreed
upon in writing by the Purchaser, the Mortgage Loan Seller, Merrill Lynch
Mortgage Capital, Inc. and Paine Webber Real Estate Securities Inc. .
"Closing Date": November 4, 1999.
"Cut-Off Date": November 1, 1999, except that with respect to the Mortgage
Loans designated ORIX-3429, ORIX-3430, ORIX-3431, ORIX-3432, ORIX-3433,
ORIX-3434, ORIX-3435, ORIX-3436, the Cut-Off Date is November 5, 1999.
"Initial Pool Balance": An amount equal to approximately $592,445,159.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of trust
or other instrument securing a Mortgage Note and creating a lien on the fee or
leasehold interest in the related Mortgaged Property.
"Mortgage File": The meaning ascribed to such term in the Pooling and
Servicing Agreement, except that the endorsement referenced in clauses (i),
(iv), (v) and (viii) may be in blank.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.3 of this Agreement. As used herein, the
term "Mortgage Loan" includes each related Mortgage Note, the related Mortgage
and other documents contained in the related Mortgage File and any related
agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage, Assignment
of Leases (if any) and other agreements executed in connection with such
Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any other Person that owns or has acquired the related Mortgaged
Property and/or
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<PAGE>
assumed the obligations of the original obligor under the Mortgage Note. The
representations and warranties made by the Mortgage Loan Seller in this
Agreement as to "each Mortgagor" are given with respect to the obligor.
"Other Mortgage Loan Purchase Agreement": Either(i) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between Merrill
Lynch Mortgage Capital, Inc. and the Purchaser, or (ii) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between Paine
Webber Real Estate Securities Inc. and the Purchaser.
"Pooling and Servicing Agreement": The Pooling and Servicing Agreement,
dated and effective as of November 1, 1999, among Purchaser, Master Servicer,
Special Servicer and Trustee
"Prospectus Supplement": That certain prospectus supplement, dated October
29, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan required
to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as of
the date of purchase;
(ii) all accrued and unpaid interest to but not including the Due
Date in the Due Period during which such Mortgage Loan or REO Loan was
purchased;
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate and unpaid
Special Servicing Fees allocable to such Mortgage Loan; plus
(iv) all reasonable out-of-pocket expenses reasonably incurred or to
be incurred by the Master Servicer, the Special Servicer, the Depositor or
the Trustee in respect of the Breach or Document Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Term Sheet": The Structural and Collateral Term Sheet dated October
15, 1999 in respect of the Securitization Transaction.
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<PAGE>
ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the terms and
conditions of this Agreement, the Mortgage Loan Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans on the Closing Date.
(b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Willkie Farr & Gallagher, New York, New York,
at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full consideration for
the Mortgage Loan Seller's sale of the Mortgage Loans to the Purchaser, the
Purchaser will deliver to the Mortgage Loan Seller an amount equal to
$140,306,755 (the "Purchase Price") in immediately available funds, which
represents the purchase price of the Mortgage Loans (with accrued interest) net
of $659,657 which, subject to Section 5.1 hereof, represents the Mortgage Loan
Seller's Allocable Share of the expenses incurred in connection with the
Securitization Transaction.
2.3. Conveyance of Mortgage Loans. On the Closing Date, the Mortgage
Loan Seller shall sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, and the
Purchaser shall purchase, all right, title and interest of the Mortgage Loan
Seller in and to the Mortgage Loans (exclusive of the Retained Interest),
including: (i) all scheduled payments of interest (other than the Retained
Interest) and principal due on or with respect to the Mortgage Loans after the
Cut-Off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-Off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-Off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-Off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-Off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
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<PAGE>
2.4. Delivery of Mortgage Loan Documents. (a) The Purchaser hereby
directs the Mortgage Loan Seller and the Mortgage Loan Seller hereby agrees to
deliver to each of the Trustee, the Custodian, the Master Servicer and the
Special Servicer (x) all documents, instruments and agreements required to be
delivered by the Purchaser to such parties pursuant to Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of Section
2.01 of the Pooling and Servicing Agreement, and (y) such other documents,
instruments and agreements relating to the Mortgage Loans as the Purchaser, the
Trustee, the Custodian, the Master Servicer and the Special Servicer may
reasonably request.
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. If the Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments required to be recorded or filed prior to the Closing Date
and to be delivered as part of a Mortgage File on or before the Closing Date,
solely because of a delay caused by the public recording or filing office where
such document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument provided
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording or filing) is delivered to the Purchaser, the Trustee or
the Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of a
Mortgage to be a true and complete copy of the original thereof submitted for
recording or filing), with evidence of recording or filing thereon, is delivered
to the Purchaser, the Trustee or the Custodian within 120 days of the Closing
Date (or within such longer period after the Closing Date as the Purchaser may
consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller is, as certified in writing to the Purchaser and the
Trustee no less often than every 90-days, in good faith attempting to obtain
from the appropriate county recorder's office such original or photocopy). If
the Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Section 2.4(b) shall
be deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of recording thereon and certified in the
case of a Mortgage by the appropriate county recorder's office to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Purchaser, the Trustee or a Custodian appointed thereby on or before the
Closing Date together with an affidavit certifying that the original thereof has
been lost or destroyed. With respect to any Mortgage Loan, and notwithstanding
the foregoing or Section 2.4(a), the Mortgage Loan Seller may deliver a
5
<PAGE>
UCC-3 on or before the Closing Date that does not contain the filing information
for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has not been
returned to the Mortgage Loan Seller by the applicable filing office, and the
Mortgage Loan Seller may deliver assignments of documents and/or instruments
that do not contain the recording information for the related documents and/or
instruments, as applicable, if such documents and/or instruments have not been
returned to the Mortgage Loan Seller by the applicable recording office. The
Mortgage Loan Seller hereby authorizes the Purchaser, acting in its stead and on
its behalf, to fill in any missing filing or recording information or any
instrument or document required to be delivered pursuant to this subsection (b).
The delivery of an original pro forma or specimen title insurance policy or an
original marked, redated and recertified commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf no later than the 90th day following the
Closing Date.
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Mortgage Loan Seller shall as to each Mortgage Loan,
promptly (and in any event within 30 days of the later of the Closing Date and
the Purchaser's and Trustee's actual receipt of the related documents) cause to
be delivered to the Trustee in recordable form for recording or filing, as the
case may be, in the appropriate public office for real property records or UCC
Financing Statements, as appropriate, each assignment of an instrument and/or
document enumerated in clauses (ii), (iii), (iv), (v) and (viii) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement and each
UCC-3 to the Trustee as indicated in such assignment documents. Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee or its designee following recording, and each such UCC-3
shall reflect that the file copy thereof should be returned to the Trustee or
its designee following filing. In connection with the Mortgage Loan Seller's
delivery of Mortgage Loan documents in accordance with the preceding sentences,
the Mortgage Loan Seller hereby authorizes the Trustee as the transferee of the
Purchaser to complete each endorsement or assignment in blank appearing thereon
in favor of the Trustee in such manner as the Trustee shall determine in the
exercise of its sole discretion in its capacity as Trustee under the Pooling and
Servicing Agreement (provided that such endorsement or assignment will be
without recourse, representation or warranty to the Mortgage Loan Seller except
as expressly set forth in this Agreement). If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Purchaser or an assignee thereof, which may include, the Trustee or
its Custodian or its agent shall notify the Mortgage Loan Seller of same. The
Mortgage Loan Seller shall cure such defect within 90 days or the Purchaser may
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate, all at the Mortgage Loan
Seller's expense. The Purchaser shall execute, or cause the Mortgage Loan Seller
to execute any replacement document or instrument being filed in substitution
for any such lost or returned unrecorded or unfiled document or instrument at
the Mortgage Loan Seller's expense and assist the Purchaser, the Trustee or a
Custodian or its agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
6
<PAGE>
assignment to the Trustee or to file any UCC-3 in those jurisdictions where, in
the written opinion of local counsel of Purchaser, the Trustee or a Custodian
acceptable to the Purchaser and the Trustee, such recordation and/or filing is
not required to protect the Purchaser's or the Trustee's interest in the
Mortgage Loans against sale, further assignment, satisfaction or discharge by
the Mortgage Loan Seller or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in escrow
accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Master Servicer
promptly after the Closing Date, but in all events within three (3) business
days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Pursuant to Section 2.02 and 2.03
of the Pooling and Servicing Agreement, if the Purchaser or an assignee thereof,
which may include the Trustee or the Custodian on its behalf, discovers or
receives notice of a Document Defect or a Breach (each as defined in the Pooling
and Servicing Agreement), the Mortgage Loan Seller shall correct or cure any
such Document Defect or Breach or repurchase or substitute such Defective
Mortgage Loan in accordance with Section 3.3 of this Agreement.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the Closing
Date:
(i) Purchaser Duly Formed and Authorized. The Purchaser is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and the Purchaser has taken
all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including, but not limited to, the
power and authority to purchase and acquire the Mortgage Loans in
accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due
authorization, execution and delivery of this Agreement by each
other party hereto, this Agreement and all of the obligations of the
Purchaser hereunder are the legal,
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<PAGE>
valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with the terms of this Agreement, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and
delivery of this Agreement and the performance by the Purchaser of
its obligations hereunder will not conflict with any provisions of
any law or regulations to which the Purchaser is subject, or
conflict with, result in a breach of or constitute a default under
any of the terms, conditions or provisions of the certificate of
incorporation or the by-laws of the Purchaser or any indenture,
agreement or instrument to which the Purchaser is a party or by
which it is bound, or any order or decree applicable to the
Purchaser, or result in the creation or imposition of any lien on
any of the Purchaser's assets or property, which would materially
and adversely affect the ability of the Purchaser to carry out the
transactions contemplated by this Agreement; the Purchaser has
obtained any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery
and performance by the Purchaser of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding
pending or, to the Purchaser's knowledge, threatened against the
Purchaser in any court or by or before any other governmental agency
or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Purchaser to
carry out the transactions contemplated by this Agreement.
3.2. Representations and Warranties of the Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants with
respect to itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan Seller is a
limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware, and the Mortgage Loan
Seller has taken all necessary limited liability company action to
authorize the execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and transfer the
Mortgage Loans in accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Mortgage Loan Seller hereunder
are the legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage
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<PAGE>
Loan Seller in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and delivery
of this Agreement and the performance by the Mortgage Loan Seller of its
obligations hereunder will not conflict with any provisions of any law or
regulations to which the Mortgage Loan Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of the certificate of formation, limited
liability company agreement or other organizational documents of the
Mortgage Loan Seller or any indenture, agreement or instrument to which
the Mortgage Loan Seller is a party or by which it is bound, or any order
or decree applicable to the Mortgage Loan Seller, or result in the
creation or imposition of any lien on any of the Mortgage Loan Seller's
assets or property, which would materially and adversely affect the
ability of the Mortgage Loan Seller to carry out the transactions
contemplated by this Agreement; the Mortgage Loan Seller has obtained any
consent, approval, authorization or order of any court or governmental
agency or body required for the execution, delivery and performance by the
Mortgage Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending
or, to the Mortgage Loan Seller's knowledge, threatened against the
Mortgage Loan Seller in any court or by or before any other governmental
agency or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Mortgage Loan Seller
to carry out the transactions contemplated by this Agreement;
(v) Mortgage Files in Possession. The Mortgage Loan Seller or its
custodian is in possession of a Mortgage File with respect to each
Mortgage Loan identified on the Mortgage Loan Schedule and each such
Mortgage File will be transferred to the Purchaser or the Trustee as its
designee. The Mortgage Loan Seller has not withheld any material
information with respect to the Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in default
in the performance of any obligations, covenants or conditions contained
in any material agreement or instrument to which it is party, which
default might have consequences that would materially and adversely affect
the financial conditions or operations of the Mortgage Loan Seller or its
properties taken as a whole or would have consequences that would
materially and adversely affect its performance hereunder.
(b) Representations and Warranties as to the Mortgage Loans. The
Mortgage Loan Seller hereby makes the representations and warranties attached
hereto as Schedule I (subject to the exceptions set forth in Exhibit D) with
respect to each Mortgage Loan, as of the date specified therein or, if no such
date is specified, as of the Closing Date.
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<PAGE>
3.3. Remedies for Breach of Certain Representations and Warranties.
(a) It is understood and agreed that the representations and warranties set
forth herein shall survive the sale of the Mortgage Loans to the Purchaser,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement, and shall inure to the benefit of the Purchaser, and the
Trustee as the transferee of the Purchaser, notwithstanding (1) any restrictive
or qualified endorsement on any Mortgage Note, assignment of Mortgage,
Assignment of Leases, Rents and Profits or reassignments thereof (2) any
termination of this Agreement or (3) the examination by any Person of, or
failure by any Person to examine, any Mortgage File. It is further understood
and agreed that the representations and warranties set forth in Section 3.2(b)
relate only to the Mortgage Loans conveyed hereunder and do not cover any
mortgage loans sold to the Purchaser by any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage Loan
Seller, the Purchaser or the Trustee that (i) a Document Defect (as defined in
the Pooling and Servicing Agreement) exists, or (ii) a Breach (as defined in the
Pooling and Servicing Agreement) has occurred with respect to any Mortgage Loan
which, in the case of either clause (i) or (ii), materially and adversely
affects the value of such Mortgage Loan or the interests of the
Certificateholders therein, the party discovering the existence of such Document
Defect or Breach with respect to such Mortgage Loan (a "Defective Mortgage
Loan") shall give prompt written notice thereof to each of the parties to the
Pooling and Servicing Agreement and the Mortgage Loan Seller.
Within 90 days of the earlier of its discovery or its receipt of
notice of any such Defective Mortgage Loan (or in the case of a Document Defect
or Breach relating to a Mortgage Loan not being a "qualified mortgage" within
the meaning of the REMIC Provisions, no later than 90 days following the date on
which any party to the Pooling and Servicing Agreement discovers such Document
Defect or Breach), the Mortgage Loan Seller shall cure such Document Defect or
Breach in all material respects, which shall include payment of losses and any
expenses associated therewith, or, if such Document Defect or Breach cannot be
cured within such 90-day period, either (i) repurchase the affected Mortgage
Loan at the applicable Repurchase Price not later than the end of such 90-day
period, or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan and pay to the Trustee, for deposit into the Certificate
Account, any Substitution Shortfall Amount in connection therewith no later than
the end of such 90-day period. Notwithstanding the above, if such Document
Defect or Breach is capable of being cured but not within such 90-day period,
such Document Defect or Breach does not relate to the Mortgage Loan not being
treated as a "qualified mortgage" within the meaning of the REMIC Provisions,
and the Mortgage Loan Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, such Mortgage
Loan Seller shall have an additional 90-days to complete such cure (or, failing
such cure, to repurchase the related Mortgage Loan); provided, however, that
with respect to such additional 90 day period, the Mortgage Loan Seller shall
have delivered to the Trustee, the Master Servicer and each Rating Agency, an
officer's certificate with all relevant correspondence and communication in the
possession of the Mortgage Loan Seller as of the date thereof relating to such
Document
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Defect or Breach, that describes the reasons that a cure was not effected within
the first 90-day cure period, what actions the Mortgage Loan Seller is pursuing
in connection with the cure thereof, the actions it proposes to take to effect
such cure, and which states that it anticipates such Document Defect or Breach
will be cured within the additional 90-day period.
If the affected Mortgage Loan is to be repurchased, the payment of
the Repurchase Price with respect to any Mortgage Loans repurchased by the
Mortgage Loan Seller shall be paid in accordance with the directions of the
Master Servicer as agent for the Trustee. If the affected Mortgage Loan is to be
substituted, (I) the Mortgage Loan Seller shall, on the date of substitution,
remit the Substitution Shortfall Amount by wire transfer of immediately
available funds in accordance with the directions of the Master Servicer as
agent for the Trustee; (II) no such substitution may be made in any calendar
month after the Determination Date for such month; (III) the Mortgage Loan
Seller shall, on the date of substitution, certify in writing to the Trustee and
the Master Servicer that the Qualified Substitute Mortgage Loan(s) meets all of
the requirements of the definition of "Qualified Substitute Mortgage Loan" in
the Pooling and Servicing Agreement and that the representations and warranties
set forth in Section 3.2 hereof are true and correct with respect to the
Mortgage Loan Seller and such Qualified Substitute Mortgage Loan(s) (which
includes a mortgage loan schedule describing such Qualified Substitute Mortgage
Loan(s) substantially in the form of Exhibit A)) and shall agree with the
Trustee in writing to be subject to the terms and provisions of this Agreement
with respect to such Qualified Substitute Mortgage Loan(s) as of the date of
substitution; (IV) scheduled payments of principal and interest due with respect
to any such Qualified Substitute Mortgage Loan after the related date of
substitution shall be part of the Trust Fund; and (V) scheduled payments of
principal and interest due with respect to any such Qualified Substitute
Mortgage Loan on or prior to the related date of substitution shall not be part
of the Trust Fund, and the Mortgage Loan Seller shall be entitled to receive
such payments promptly following receipt thereof by the Master Servicer as the
agent of the Trustee.
It is understood and agreed that the obligations of the Mortgage
Loan Seller set forth in this Section 3.3(b) to cure or repurchase or substitute
for a Defective Mortgage Loan constitute the sole remedies available to the
Purchaser and its successors and assigns respecting a Defective Mortgage Loan.
Upon any such repurchase or substitution of a Mortgage Loan by the Mortgage Loan
Seller, the Purchaser shall execute and deliver (or shall cause the Trustee to
execute and deliver) such instruments of transfer or assignment presented to it
by the Mortgage Loan Seller, in each case without recourse, as shall be
necessary to vest in the Mortgage Loan Seller the legal and beneficial ownership
of such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto) and the related rights
under each agreement assigned pursuant to Section 3.7 hereof, and shall deliver
the related Mortgage File to the Mortgage Loan Seller or its designee after
receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b) with respect to
a Defective Mortgage Loan, no provision of this Agreement shall be interpreted
as limiting (or otherwise be deemed to limit) the Purchaser's right to pursue
any remedies it may have under
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this Agreement, in equity or at law, in connection with any breach by the
Mortgage Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the assignment by
the Purchaser to the Trustee, as trustee under the Pooling and Servicing
Agreement, for the benefit of the Certificateholders, of the representations and
warranties contained herein and of the obligation of the Mortgage Loan Seller to
cure or repurchase Defective Mortgage Loans pursuant to this Section. The
Trustee or its designee may enforce such obligation as provided in Section 5.3
hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees that,
pursuant to Section 2.03(b) of the Pooling and Servicing Agreement, the Master
Servicer and the Special Servicer (in the case of Specially Serviced Mortgage
Loans) have the right, for the benefit of the Certificateholders, to enforce the
obligations of the Mortgage Loan Seller under this Section 3.3. The Master
Servicer and the Special Servicer, as the case may be, shall be reimbursed for
the reasonable costs of such enforcement in accordance with the Pooling and
Servicing Agreement.
3.4. [Intentionally Omitted].
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order to
perform any of its obligations or satisfy any of the conditions on its part to
be performed or satisfied pursuant to the Certificate Purchase Agreement and the
Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The Mortgage
Loan Seller agrees to execute and deliver such instruments and take such actions
as the Purchaser may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement and to
effectuate the securitization of the Mortgage Loans pursuant to the Pooling and
Servicing Agreement and to carry out its obligations under the Pooling and
Servicing Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, sells, transfers, assigns, delivers, sets-over and
conveys to the Purchaser all the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans pursuant to each agreement between
the Mortgage Loan Seller and the originators of the Mortgage Loans (where such
originators are Persons other than the Mortgage Loan Seller) pursuant to which
the Mortgage Loan Seller acquired rights in such Mortgage Loan (which agreements
are set forth on Schedule II attached hereto), including, without limitation,
all of the Mortgage Loan Seller's right, title and interest in any claims,
insurance policies, escrow accounts, demands, causes of action and any other
collateral arising out of and/or executed and/or delivered in or to, together
with any other documents or instruments executed and/or delivered in connection
with or otherwise related to the Mortgage Loans, without recourse,
representation or warranty except as set forth herein.
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ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage File shall be delivered to and held by the Trustee on
behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as Exhibit A;
(iii) an officer's certificate from the Mortgage Loan Seller dated
as of the Closing Date, in the form attached hereto as Exhibit B;
(iv) opinions of J. Russel Akin, in-house counsel to the Mortgage
Loan Seller and Andrews & Kurth, LLP, collectively covering the matters
described in Exhibit C and substantially in the form attached hereto as
Exhibit C;
(v) such other opinions of counsel as the Mortgage Loan Seller, the
Depositor or the Underwriters may require;
(vi) each Other Mortgage Loan Purchase Agreement has been duly
executed and delivered;
(vii) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the ratings from Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc.
("Standard & Poor's") and Duff & Phelps Credit Rating Co. ("DCR") set
forth in Clause (viii) of this Section 4.1(b);
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(viii) Letters from Standard & Poor's and DCR showing the following
ratings: for (i) the Class A-1 and Class A-2 Certificates, a "AAA" rating
from each of Standard & Poor's and DCR, (ii) the Class B Certificates, a
"AA" rating from each of Standard & Poor's and DCR, (iii) the Class C
Certificates, a "A" rating from each of Standard & Poor's and DCR, (iv)
the Class D Certificates, a "A-" rating from each of Standard & Poor's and
DCR, (v) the Class E Certificates, a "BBB" rating from each of Standard &
Poor's and DCR, (vi) the Class F Certificates, a "BBB-" rating from each
of Standard & Poor's and DCR, (vii) the Class IO Certificates, a "AAAr"
and "AAA" rating from Standard & Poor's and DCR, respectively, (viii), the
Class G Certificates, a "BB" rating from each of Standard & Poor's and
DCR, (ix) the Class H Certificates, a "B" rating from each of Standard &
Poor's and DCR, and (x) the Class J Certificates, a "B-" rating from each
of Standard & Poor's and DCR.
(ix) a letter from the independent accounting firm of Deloitte &
Touche, LLP in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans as set forth in the Prospectus
and the Prospectus Supplement and certain information regarding the
Certificates as set forth in the Prospectus and the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The obligations of
the Mortgage Loan Seller under this Agreement shall be subject to the
satisfaction, on the Closing Date, of the Purchaser's compliance with all of the
Purchaser's obligations under this Agreement.
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ARTICLE V.
MISCELLANEOUS
5.1. Costs. If, pursuant to Section 2.2, the amounts deducted by the
Purchaser in respect of the Mortgage Loan Seller's Allocable Share of
transaction expenses from the purchase price of the Mortgage Loans are
subsequently determined to be less than or greater than the actual amounts owed
to the Purchaser by the Mortgage Loan Seller with respect thereto, the Mortgage
Loan Seller shall promptly reimburse the Purchaser or its designee for the
amount of such deficiency, or the Purchaser shall refund, or cause to be
refunded, to the Mortgage Loan Seller the amount of such excess, as the case may
be.
5.2. Indemnification and Contribution: (a) The Mortgage Loan Seller
shall indemnify and hold harmless the Purchaser and the Underwriters, the
directors, officers, employees and agents of the Purchaser and the Underwriters,
and each person who controls the Purchaser and the Underwriters within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus Supplement dated October 15, 1999
(the "Preliminary Prospectus Supplement"), the Prospectus Supplement, the
Memorandum, the Term Sheet, or in any amendment thereof or supplement thereto
(such amendment or supplement which has been reviewed by the Mortgage Loan
Seller) (collectively, the "Disclosure Documents"), or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, but only to the
extent such untrue statement, alleged untrue statement, omission or alleged
omission arises out of or is based upon any information provided by or on behalf
of the Mortgage Loan Seller to the Purchaser or the Underwriters with respect to
the Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale of such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained in such Preliminary
Prospectus Supplement which was the basis of any such claim was corrected in the
Prospectus Supplement and provided, further, that the indemnification provided
by this Section 5.2 shall not apply to the extent that
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such untrue statement or omission was made as a result of an error in (i) the
manipulation, (ii) any calculations based upon, or (iii) any aggregation (other
than an aggregation made by the Mortgage Loan Seller or an aggregation contained
in tabular information provided by the Mortgage Loan Seller) of, the information
regarding the Mortgage Loans, the related Mortgagor and the related Mortgaged
Properties with comparable information relating to the Other Mortgage Loans
conveyed by other mortgage loan sellers. This indemnity agreement will be in
addition to any liability which the Mortgage Loan Seller may otherwise have. For
all purposes of this Agreement, and notwithstanding anything herein contained to
the contrary, the Mortgage Loan Seller Information includes, and is limited to,
(i) the representations and warranties of the Mortgage Loan Seller set forth in
Section 3.2 herein, (ii) summaries of the individual Mortgage Loans and any
letters, certifications and other materials furnished to the Purchaser by the
Mortgage Loan Seller relating to the Mortgage Loans, (iii) reports of
environmental assessments of the related Mortgaged Properties furnished to the
Purchaser by the Mortgage Loan Seller relating to the Mortgage Loans, (iv)
reports of site inspections of the related Mortgaged Properties furnished to the
Purchaser by the Mortgage Loan Seller relating to the Mortgage Loans, (v) all
information and documentation relating to the Mortgage Loans and included in the
investor and Rating Agencies due diligence files and any documents or
information relating to the Mortgage Loans and provided by the Mortgage Loan
Seller or any of its affiliates to potential investors, including but not
limited to Mortgage Loan legal, underwriting and servicing documents and
information, (vi) the information regarding the Mortgage Loans, property
managers, underwriting standards of the Mortgage Loan Seller and the Mortgage
Loan Seller set forth in the Disclosure Documents, and (vii) any computer
diskettes, computer tapes and/or other electronic media furnished to the
Purchaser by the Mortgage Loan Seller relating to the Mortgage Loans containing
(A) the information on the Mortgage Loan Schedule, and (B) information regarding
the Mortgage Loans provided by the Mortgage Loan Seller to the Depositor or any
Underwriter and used in preparing Computational Materials (as such term is
defined in the no-action letter issued by the staff of the Securities and
Exchange Commission (the "SEC"), dated May 20, 1994 to Kidder, Peabody
Acceptance Corporation I), Collateral Term Sheets, ABS Term Sheets, and/or
Structural Term Sheets (as such terms are defined in the no-action letter issued
by the SEC, dated February 17, 1995 to the Public Securities Association).
(b) The Purchaser shall indemnify and hold harmless the Mortgage
Loan Seller, its directors, officers, employees and agents, and each person, if
any, who controls the Mortgage Loan Seller within the meaning of either the 1933
Act or the 1934 Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Disclosure Documents, any Computational Materials, Collateral Term Sheets, ABS
Term Sheets, and/or Structural Term Sheets, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, except to the extent the
such untrue statement, alleged untrue statement, omission or alleged omission is
based
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upon the Mortgage Loan Seller Information, and the Purchaser shall reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5.2 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5.2, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 5.2, except to the extent that it has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 5.2. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party for
expenses incurred by the indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel
(together with one local counsel, if applicable), approved by the Purchaser in
the case of subsection (a) above, representing the indemnified parties under
subsection (a) above who are parties to such action), (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes
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the defense of any proceeding, it shall be entitled to settle such proceeding
with the consent of the indemnified party of parties in connection with all
claims which have been asserted against the indemnified party or parties in such
proceeding by the other parties to such settlement, and shall be entitled to
settle such proceeding without the consent of the indemnified party or parties
so long as such settlement (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section 5.2 shall
for any reason be unavailable in accordance with its terms to an indemnified
party under this Section 5.2, then the Mortgage Loan Seller and the Purchaser
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above, in such proportion as is appropriate to reflect (i) the
relative benefits received by the Mortgage Loan Seller on the one hand and the
Purchaser on the other from the purchase and sale of the Mortgage Loans and the
offering of the Certificates and (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above, but
also to reflect the relative fault of the Mortgage Loan Seller on the one hand
and the Purchaser on the other in connection with the statement or omission that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Purchaser on the one hand and the Mortgage Loan Seller on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Certificates (before deducting expenses but net of underwriting discounts
and commissions) received by the Purchaser bear to the total net proceeds
received by the Mortgage Loan Seller with respect to the sale of the Mortgage
Loans (before deducting expenses). The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Mortgage Loan Seller or the Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Mortgage Loan
Seller and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were to be determined by per capita
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d) subject to the limitations therein
provided under subsection (c). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit
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of, and may be enforced by or on behalf of, the Trustee and the Holders of
Certificates to the same extent that the Purchaser has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein, and all such
representations and warranties shall survive delivery of the Mortgage Files to
the Trustee until the termination of the Pooling and Servicing Agreement.
Section 5.2 of this Agreement shall survive delivery of the Mortgage Files to
the Trustee and remain in full force and effect after the termination or
cancellation of this Agreement.
5.4. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York (without regard
to conflicts of laws principles), and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws, except
that the parties intend that the provisions of 5-1401 of the New York General
Obligations Law shall apply to this Agreement.
5.6. Modifications. (a) Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(b) This Agreement may not be changed in any manner which would have
a material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
(c) This Agreement may be executed in any number of counterparts,
each of which shall, for all purposes, be deemed to be an original and all of
which shall together constitute but one and the same instrument.
5.7. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at Merrill Lynch
Mortgage Investors Inc., World Financial Center, New York, New York 10281,
Attention: Bruce L. Ackerman, telecopy number: (212) 449-7684; or, if sent to
the Mortgage Loan Seller, will be mailed, delivered or transmitted by facsimile
and confirmed to it at ORIX Real Estate Capital Markets, LLC, 1717 Main Street,
Suite 1400, Dallas, Texas 75201, Attention: Mark Morganfield, telecopy number:
(214) 237-2034.
5.8. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this
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Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
5.9. Confirmation of Intent. It is the express intent of the parties
hereto that the conveyance contemplated by this Agreement be, and be treated for
all purposes as, a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Mortgage Loan Seller to secure a debt or other obligation
of the Mortgage Loan Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to continue to be property of
the Mortgage Loan Seller then (a) this Agreement shall also be deemed to be a
security agreement under applicable law; (b) the transfer of the Mortgage Loans
provided for herein shall be deemed to be a grant by the Mortgage Loan Seller to
the Purchaser of a first priority security interest in all of the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property; (c) the possession by the
Purchaser or any successor thereto of the related Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser or any successor thereto for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof shall also be deemed to be an assignment of any
security interest created hereby.
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IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
MERRILL LYNCH MORTGAGE
INVESTORS INC., as Purchaser
By: /s/ Michael M. McGovern
------------------------------
Name: Michael M. McGovern
Title: Authorized Signatory
ORIX REAL ESTATE CAPITAL
MARKETS, LLC, as Mortgage Loan Seller
By: /s/ James R. Thompson
-----------------------------
Name: James R. Thompson
Title: C.E.O.
S-1
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Mortgage Loan Schedule MLMI 1999-C1
<TABLE>
<CAPTION>
Control No. Property Name Property Type Address City State Zip Code
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<S> <C> <C> <C> <C> <C> <C>
ORIX-1825 The Bayview Office Building Office 1040 Bayview Drive Ft. Lauderdale FL 33304
ORIX-2104 Kingsgate Shopping Center Retail 8422 Fondren Road Houston TX 77074
ORIX-2187 Arsenal Street Shopping Center Retail 160 Coleman Avenue Watertown NY 13601
ORIX-2507 Garden Villa Nursing Home 106 Del Norte Drive El Campo TX 77437
ORIX-2508 Kingsland Hills Care Center Nursing Home 1229 Highway 1431 West Kingsland TX 78639
ORIX-2509 New Covenant Care Center of Dinuba Nursing Home 1730 South College Road Dinuba CA 93618
ORIX-2596 Seguin Nursing & Rehab Center Nursing Home 1637 N. King St. Seguin TX 78155
ORIX-2607 Loveland Tech Center Industrial 4007 & 4015 South Lincoln Ave. Loveland CO 80537
ORIX-2939 Beverly Hills Medical Tower Office 1125 South Beverly Drive Los Angeles CA 90035
ORIX-2965 Frazier-King Building Office 100 East Royal Lane Irving TX 75039
ORIX-3100 HKS Building Office 1919 McKinney Avenue Dallas TX 75201
ORIX-3108 Centre East Shopping Center Retail 10600 East Washington Street Indianapolis IN 46229
ORIX-3115 The Financial Center Office 24022 Calle de la Plata Laguna Hills CA 92653
ORIX-3151 Spring Cypress Village Shopping Center Retail 22432-22560 State Highway 249 Houston TX 77070
ORIX-3161 Woodland Park Plaza Retail 1063-1131 Highway 24 Woodland Park CO 80866
ORIX-3208 Putnam Plaza Retail 1245 Dixwell Avenue Hamden CT 06514
ORIX-3238 Southeast Crossing Retail 3320 Hwy 110 Tyler TX 75704
ORIX-3256 Kingstown Plaza Shopping Center Retail 6615-6669 Post Road North Kingstown RI 02852
ORIX-3257 Spectrum Club - Thousand Oaks Health Club 2400 Willow Lane Thousand Oaks CA 91361
ORIX-3266 Northpark Plaza Retail 10343-10355 Federal Boulevard Westminster CO 80221
ORIX-3290 250 Beacham Street Industrial 250 Beacham Street (Units 5-15) Everett MA 02149
ORIX-3325 Lakeside Plaza Office Center Office 5205, 5215, 5225 Wiley Post Way Salt Lake City UT 84116
ORIX-3356 Hardaway Office Building Office 615 Main Street Nashville TN 37206
ORIX-3429 Gateway 2000 - Baton Rouge Retail 9603 Cortana Place Baton Rouge LA 70815
ORIX-3430 Gateway 2000 - Brentwood Retail 1601 Westgate Circle Brentwood TN 37027
ORIX-3431 Gateway 2000 - El Paso Retail 820 Sunland Park Drive El Paso TX 79912
ORIX-3432 Gateway 2000 - Jackson Retail 5722 East I-55 Frontage Road Jackson MS 39211
ORIX-3433 Gateway 2000 - Little Rock Retail 12018 Chenal Parkway Little Rock AR 72211
ORIX-3434 Gateway 2000 - Newport News Retail 12249 Jefferson Avenue Newport News VA 23602
ORIX-3435 Gateway 2000 - Oklahoma City Retail 4001 Northwest Expressway Oklahoma City OK 73116
ORIX-3436 Gateway 2000 - Plano Retail 1300 North Central Expressway Plano TX 75074
ORIX-3438 Raymour & Flanigan - Southampton Retail 427 Street Road Southampton PA 18966
<CAPTION>
Cut-Off Date P&I Payment Remaining Remaining Maturity Date
Control No. Property Name Balance (monthly) Gross Rate Term (mos) Amort (mos) ARD Date
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<S> <C> <C> <C> <C> <C> <C> <C>
ORIX-1825 The Bayview Office Building 4,843,129.08 33,161.17 7.170% 104 344 7/1/2008
ORIX-2104 Kingsgate Shopping Center 1,683,872.79 13,403.65 8.250% 110 290 1/1/2009
ORIX-2187 Arsenal Street Shopping Center 2,809,852.74 20,452.29 7.850% 110 350 1/1/2009
ORIX-2507 Garden Villa 2,402,837.46 18,636.29 7.950% 111 291 2/1/2009
ORIX-2508 Kingsland Hills Care Center 2,055,346.45 15,673.07 7.750% 111 291 2/1/2009
ORIX-2509 New Covenant Care Center of Dinuba 1,982,529.32 15,702.24 8.200% 111 291 2/1/2009
ORIX-2596 Seguin Nursing & Rehab Center 1,563,741.79 12,386.53 8.220% 112 292 3/1/2009
ORIX-2607 Loveland Tech Center 2,385,020.82 17,360.04 7.850% 110 350 1/1/2009
ORIX-2939 Beverly Hills Medical Tower 5,654,145.91 44,319.21 7.830% 113 274 4/1/2009
ORIX-2965 Frazier-King Building 16,439,315.22 115,370.39 7.500% 114 354 5/1/2009
ORIX-3100 HKS Building 7,983,038.32 57,977.79 7.870% 116 356 7/1/2009
ORIX-3108 Centre East Shopping Center 8,966,895.33 63,601.53 7.610% 114 354 5/1/2009
ORIX-3115 The Financial Center 6,196,394.03 45,409.44 7.940% 112 352 3/1/2009
ORIX-3151 Spring Cypress Village Shopping Center 4,976,440.47 36,871.52 7.750% 114 318 5/1/2009
ORIX-3161 Woodland Park Plaza 2,893,490.73 21,718.11 8.220% 116 356 7/1/2009
ORIX-3208 Putnam Plaza 9,540,720.99 73,634.38 8.530% 118 358 9/1/2009
ORIX-3238 Southeast Crossing 2,076,285.41 15,860.92 8.410% 116 356 7/1/2009
ORIX-3256 Kingstown Plaza Shopping Center 4,208,441.44 31,075.22 8.050% 117 357 8/1/2009
ORIX-3257 Spectrum Club - Thousand Oaks 8,394,533.22 70,205.11 8.950% 119 299 10/1/2009
ORIX-3266 Northpark Plaza 6,243,841.84 46,560.16 8.150% 116 356 7/1/2009
ORIX-3290 250 Beacham Street 1,943,861.56 14,950.48 8.290% 115 331 6/1/2009
ORIX-3325 Lakeside Plaza Office Center 18,170,832.51 132,911.32 7.950% 117 357 8/1/2009
ORIX-3356 Hardaway Office Building 2,994,997.40 24,399.89 8.620% 118 298 9/1/2009
ORIX-3429 Gateway 2000 - Baton Rouge 1,136,856.23 8,677.75 8.410% 118 358 9/5/2009
ORIX-3430 Gateway 2000 - Brentwood 1,637,352.68 12,498.10 8.410% 118 358 9/5/2009
ORIX-3431 Gateway 2000 - El Paso 1,357,105.46 10,362.98 8.410% 117 357 8/5/2009
ORIX-3432 Gateway 2000 - Jackson 1,736,253.17 13,253.02 8.410% 118 358 9/5/2009
ORIX-3433 Gateway 2000 - Little Rock 1,709,613.37 13,054.76 8.410% 117 357 8/5/2009
ORIX-3434 Gateway 2000 - Newport News 1,855,133.56 14,160.45 8.410% 118 358 9/5/2009
ORIX-3435 Gateway 2000 - Oklahoma City 1,549,337.13 11,830.87 8.410% 117 357 8/5/2009
ORIX-3436 Gateway 2000 - Plano 1,641,208.88 12,532.41 8.410% 117 357 8/5/2009
ORIX-3438 Raymour & Flanigan - Southampton 3,282,897.24 25,569.86 8.630% 118 358 9/1/2009
<CAPTION>
Ground Balloon/Hyperam/ Sub Master Mortgage
Control No. Property Name Lease Fully Amort Servicing fees Servicing fees Loan Seller
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<S> <C> <C> <C> <C> <C> <C>
ORIX-1825 The Bayview Office Building No Balloon incl. In Master 0.050 ORIX
ORIX-2104 Kingsgate Shopping Center No Balloon incl. In Master 0.125 ORIX
ORIX-2187 Arsenal Street Shopping Center No Balloon incl. In Master 0.100 ORIX
ORIX-2507 Garden Villa No Balloon incl. In Master 0.100 ORIX
ORIX-2508 Kingsland Hills Care Center No Balloon incl. In Master 0.100 ORIX
ORIX-2509 New Covenant Care Center of Dinuba No Balloon incl. In Master 0.100 ORIX
ORIX-2596 Seguin Nursing & Rehab Center No Balloon incl. In Master 0.125 ORIX
ORIX-2607 Loveland Tech Center No Balloon incl. In Master 0.100 ORIX
ORIX-2939 Beverly Hills Medical Tower Yes Balloon incl. In Master 0.033 ORIX
ORIX-2965 Frazier-King Building No Balloon incl. In Master 0.020 ORIX
ORIX-3100 HKS Building No Balloon incl. In Master 0.020 ORIX
ORIX-3108 Centre East Shopping Center No Balloon incl. In Master 0.020 ORIX
ORIX-3115 The Financial Center No Balloon incl. In Master 0.033 ORIX
ORIX-3151 Spring Cypress Village Shopping Center No Balloon incl. In Master 0.033 ORIX
ORIX-3161 Woodland Park Plaza No Balloon incl. In Master 0.100 ORIX
ORIX-3208 Putnam Plaza No Balloon incl. In Master 0.020 ORIX
ORIX-3238 Southeast Crossing No Balloon incl. In Master 0.100 ORIX
ORIX-3256 Kingstown Plaza Shopping Center No Balloon incl. In Master 0.045 ORIX
ORIX-3257 Spectrum Club - Thousand Oaks No Balloon incl. In Master 0.020 ORIX
ORIX-3266 Northpark Plaza No Balloon incl. In Master 0.033 ORIX
ORIX-3290 250 Beacham Street No Balloon incl. In Master 0.125 ORIX
ORIX-3325 Lakeside Plaza Office Center No Balloon incl. In Master 0.020 ORIX
ORIX-3356 Hardaway Office Building No Balloon incl. In Master 0.075 ORIX
ORIX-3429 Gateway 2000 - Baton Rouge No Balloon incl. In Master 0.125 ORIX
ORIX-3430 Gateway 2000 - Brentwood No Balloon incl. In Master 0.125 ORIX
ORIX-3431 Gateway 2000 - El Paso No Balloon incl. In Master 0.125 ORIX
ORIX-3432 Gateway 2000 - Jackson No Balloon incl. In Master 0.125 ORIX
ORIX-3433 Gateway 2000 - Little Rock No Balloon incl. In Master 0.125 ORIX
ORIX-3434 Gateway 2000 - Newport News No Balloon incl. In Master 0.125 ORIX
ORIX-3435 Gateway 2000 - Oklahoma City No Balloon incl. In Master 0.125 ORIX
ORIX-3436 Gateway 2000 - Plano No Balloon incl. In Master 0.125 ORIX
ORIX-3438 Raymour & Flanigan - Southampton No Balloon incl. In Master 0.075 ORIX
<CAPTION>
Interest
Control No. Property Name Subservicer Defeasance Accrual Cross defaulted
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<S> <C> <C> <C> <C> <C>
ORIX-1825 The Bayview Office Building ORIX Yes Actual/360 No
ORIX-2104 Kingsgate Shopping Center ORIX Yes Actual/360 No
ORIX-2187 Arsenal Street Shopping Center ORIX Yes Actual/360 No
ORIX-2507 Garden Villa ORIX Yes Actual/360 No
ORIX-2508 Kingsland Hills Care Center ORIX Yes Actual/360 No
ORIX-2509 New Covenant Care Center of Dinuba ORIX Yes Actual/360 No
ORIX-2596 Seguin Nursing & Rehab Center ORIX Yes Actual/360 No
ORIX-2607 Loveland Tech Center ORIX Yes Actual/360 No
ORIX-2939 Beverly Hills Medical Tower ORIX Yes Actual/360 No
ORIX-2965 Frazier-King Building ORIX Yes Actual/360 No
ORIX-3100 HKS Building ORIX Yes Actual/360 No
ORIX-3108 Centre East Shopping Center ORIX Yes Actual/360 No
ORIX-3115 The Financial Center ORIX Yes Actual/360 No
ORIX-3151 Spring Cypress Village Shopping Center ORIX Yes Actual/360 No
ORIX-3161 Woodland Park Plaza ORIX Yes Actual/360 No
ORIX-3208 Putnam Plaza ORIX Yes Actual/360 No
ORIX-3238 Southeast Crossing ORIX Yes Actual/360 No
ORIX-3256 Kingstown Plaza Shopping Center ORIX Yes Actual/360 No
ORIX-3257 Spectrum Club - Thousand Oaks ORIX Yes Actual/360 No
ORIX-3266 Northpark Plaza ORIX Yes Actual/360 No
ORIX-3290 250 Beacham Street ORIX Yes Actual/360 No
ORIX-3325 Lakeside Plaza Office Center ORIX Yes Actual/360 No
ORIX-3356 Hardaway Office Building ORIX Yes Actual/360 No
ORIX-3429 Gateway 2000 - Baton Rouge ORIX Yes Actual/360 No
ORIX-3430 Gateway 2000 - Brentwood ORIX Yes Actual/360 No
ORIX-3431 Gateway 2000 - El Paso ORIX Yes Actual/360 No
ORIX-3432 Gateway 2000 - Jackson ORIX Yes Actual/360 No
ORIX-3433 Gateway 2000 - Little Rock ORIX Yes Actual/360 No
ORIX-3434 Gateway 2000 - Newport News ORIX Yes Actual/360 No
ORIX-3435 Gateway 2000 - Oklahoma City ORIX Yes Actual/360 No
ORIX-3436 Gateway 2000 - Plano ORIX Yes Actual/360 No
ORIX-3438 Raymour & Flanigan - Southampton ORIX Yes Actual/360 No
</TABLE>
A-1
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE OF ORIX REAL ESTATE CAPITAL MARKETS, LLC
In connection with the sale, assignment and transfer of certain
mortgage loans (collectively, the "Mortgage Loans") by ORIX Real Estate Capital
Markets, LLC (the "Mortgage Loan Seller") to Merrill Lynch Mortgage Investors
Inc. (the "Purchaser") pursuant to the Mortgage Loan Purchase Agreement dated as
of November 1, 1999 (the "Mortgage Loan Purchase Agreement") between the
Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Purchase Agreement are true and correct in
all material respects at and as of the date hereof with the same effect as
if made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the Mortgage
Loan Purchase Agreement and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or
satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the [__]th day of [__] 1999.
ORIX REAL ESTATE CAPITAL MARKETS, LLC
By: __________________________
Name:
Title:
B-1
<PAGE>
EXHIBIT C
[Letterhead of [COUNSEL]]
[CLOSINGDATE]
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase Agreement dated as of November 1, 1999 between
Merrill Lynch Mortgage Investors Inc. and ORIX Real Estate Capital
Markets, LLC (the "Agreement")
Ladies and Gentlemen:
I am the counsel to ORIX Real Estate Capital Markets, LLC, a
Delaware corporation (the "Company"), and, in such capacity, I am familiar with
the affairs of the Company.
I am providing this opinion in connection with the sale by the
Company to Merrill Lynch Mortgage Investors Inc. of various commercial and
multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase Agreement (the "Agreement").
Terms used herein, but not otherwise defined herein, shall have the meanings
ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of ______, and I express no
opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
C-1
<PAGE>
Based on the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, is duly
qualified as a [foreign] corporation in good standing in the State of New
York, with full corporate power and authority to own its assets and
conduct its business, to execute, deliver and perform the Agreement and
all the transactions contemplated thereby, including but not limited to,
the power and authority to sell, assign and retransfer the Mortgage Loans
in accordance with the Agreement and the Company has taken all necessary
action to authorize the execution, delivery and performance of the
Agreement by it, and the Agreement has been duly authorized, executed and
delivered by it.
2. The Agreement and all of the obligations of the Company under the
Agreement are valid, legal and binding obligations of the Company
enforceable against the Company in accordance with the terms of the
Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by public policy considerations,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of the
provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company and
the performance of its obligations under the Agreement will not conflict
with any provision of any law or regulation to which the Company is
subject, or conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any of the Company's
organizational documents or, to my knowledge, any agreement or instrument
to which the Company is a party or by which it is bound, or any order or
decree applicable to the Company, result in the creation or imposition of
any lien on any of the Company's assets or property, in each case which
would materially and adversely affect the ability of the Company to carry
out the transactions contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in any
court or by or before any other government agency or instrumentality which
would materially and adversely affect the validity of the Mortgage Loans
or the ability of the Company to carry out the transactions contemplated
by the Agreement.
5. To my knowledge, the Company is not in default with respect to
any order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Company or its properties or
might have consequences that would materially and adversely affect its
performance under the Agreement.
C-2
<PAGE>
6. To my knowledge, no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Company or compliance by the Company with
the Agreement or the consummation of the transactions contemplated by the
Agreement, other than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees
hereof in connection with the transaction referred to herein. This letter may
not be relied upon, used, quoted, circulated or otherwise referred to by any
other person or for any other purpose without my prior written approval. This
opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
<PAGE>
Schedule A
ORIX Real Estate Capital Markets, LLC
1717 Main Street, Suite 1400
Dallas, Texas 75201
Merrill Lynch Mortgage Investors Inc.
World Financial Center
New York, New York 10281
PaineWebber Incorporated
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Duff & Phelps Credit Rating Co.
17 State Street, 12th Fl.
New York, New York 10004
Standard & Poor's
55 Water Street, 41st Fl.
New York, New York 10041
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21004
C-4
<PAGE>
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO EACH MORTGAGE LOAN
The following are exceptions to the representations and warranties made by
the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Schedule I of this Agreement. The item number indicates the subsection number
where such representation or warranty appears in Schedule I of this Agreement.
D-1
<PAGE>
EXHIBIT D
to Mortgage Loan Purchase Agreement dated as of November 1,
1999 between ORIX Real Estate Capital Markets, LLC and
Merrill Lynch Mortgage Investors Inc.
Exceptions to Representations and Warranties on Schedule I with
Respect to each Mortgage Loan made pursuant to Section 3.2(b)
Rep. No.
(v) The Mortgage Loans are conveyed subject to the Mortgage Loan Seller's
retention of the Retained Interest.
(xxv) The loan documents typically permit additional indebtedness incurred
in connection with trade debt and equipment financings in the ordinary
course of Mortgagor's business; consequently financing statements
evidencing such indebtedness that exist at the time of origination and
other purchase money security interests could constitute a prior
security interest in the personal property described therein.
(xxxv) For purposes of this representation, a controlling interest means more
than 50% of the ownership interest in the Mortgagor.
(xxxvi) Loan documents for the following Mortgage Loans do not provide for an
indemnitor other than the related Mortgagor as to breaches of
environmental covenants: (1) Gateway Baton Rouge; (2) Gateway
Brentwood; (3) Gateway Plano; (4) Gateway Oklahoma City; (5) Gateway
Newport News; (6) Gateway Little Rock; (7) Gateway El Paso; and (8)
Gateway Jackson.
(xliv) Property inspections for the following loans have not been conducted
within the past twelve months: (1) Loveland and (2) Bayview.
(xlvii) Environmental reports for the following loans were conducted more than
12 months preceding the Closing Date: (1) Bayview, (2) Kingsgate and
(3) Arsenal.
(xlviii) For the following Mortgage Loans secured by properties other than
office, retail, self-storage, industrial, multifamily, mobile home
park or mixed use, the loan documents require 12 months of business
interruption or rental loss insurance: (1) Spectrum Club - Thousand
Oaks; (2) New Covenant Care of Dinuba; (3) Garden Villa Nursing Home;
(4) Kingsland Hills Care Center; and (5) Seguin Nursing & Rehab
Center.
Also, the loan documents for all Mortgage Loans require that the
insurance provider have an A.M.. Best's rating of at least "A:VIII" or
a claims paying ability rating of at least "A-" from Standard &
Poor's.
D-2
<PAGE>
(lxi) (M) Ground rent increases during the term of the Mortgage Loan are
permitted for the following loan: Beverly Hills Medical
(lxiii) The aggregate outstanding principal amount of the Mortgage Loans
refers to the aggregate of the Mortgage Loans conveyed hereunder and
the Other Mortgage Loans.
(lxiv) The following Mortgage Loans have late charges which may not be
assessed prior to the 15th day of the month: (1) Gateway Baton Rouge;
(2) Gateway Brentwood; (3) Gateway Plano; (4) Gateway Oklahoma City;
(5) Gateway Little Rock; (6) Gateway El Paso; and (7) Gateway Jackson.
D-3
<PAGE>
Schedule I
Schedule I
Mortgage Loan Seller's representations and warranties as to the Mortgage Loans
<PAGE>
ORIX
Schedule I
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is true, complete
and accurate in all material respects as of the Cut-off Date.
(ii) Representations and Warranties Remain True. The Mortgage Loan Seller
has not taken any action that would cause the representations and
warranties made by each Mortgagor under the related Mortgage Loan not
to be true. The Mortgage Loan Seller has no knowledge that the
material representations and warranties made by the Mortgagor in each
Mortgage Loan are not true in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller, Originator or Mortgagor.
Neither the Mortgage Loan Seller, nor, to the Mortgage Loan Seller's
best knowledge, (1) any originator other than the Mortgage Loan Seller
or (2) the Mortgagor, committed any fraudulent acts during the
origination process of any Mortgage Loan.
(iv) Legal, Prudent and Proper. (A) With respect to each Mortgage Loan that
the Mortgage Loan Seller originated, the origination of such Mortgage
Loan is in all material respects legal, proper and prudent in
accordance with customary industry standards utilized by prudent
institutional and commercial mortgage lenders and (B) to the best of
the Mortgage Loan Seller's knowledge, (1) the origination of each
Mortgage Loan purchased by the Mortgage Loan Seller and (2) the
servicing and collection of each Mortgage Loan is in all material
respects legal, proper and prudent in accordance with customary
industry standards utilized by prudent institutional and commercial
mortgage lenders or loan servicers as appropriate.
(v) Mortgage Loan Seller's Title to Mortgage Loans. Immediately prior to
the sale of the Mortgage Loan to the Depositor, the Mortgage Loan
Seller had good and marketable title to and was the sole owner and
holder of each Mortgage Loan, and the assignment validly transferred
its ownership of the Mortgage Loan, free and clear of any and all
liens, pledges and other encumbrances (other than the Mortgage Loan
Seller's obligation to repurchase defective Mortgage Loans). Each of
the Mortgage Note and the Mortgage is properly endorsed or assigned,
respectively, to the Purchaser (or the Trustee, as its designee) or in
blank (which the Trustee or its designee is authorized to complete
and, as applicable, to file in the appropriate filing office) and each
such endorsement or assignment, respectively, is genuine.
I-1
<PAGE>
(vi) No Delinquency. No monthly payment of principal of or interest on any
Mortgage Loan has been more than 30 days delinquent since origination
(without giving effect to any grace period) and as of the Cut-off Date
for such Mortgage Loan, no monthly payment of principal of or interest
on such Mortgage Loan is 30 or more days delinquent.
(vii) No Default. There is no material default, breach, violation or event
of acceleration existing under the related Mortgage or Mortgage Note,
and to the Mortgage Loan Seller's knowledge, there is no event (other
than payments due but not yet delinquent) which, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute such a default, breach, violation or event of
acceleration.
(viii) No Modification or Release. Since origination, such Mortgage Loan has
not been modified, altered, satisfied, canceled, subordinated or
rescinded, with the exception of any modification, alteration,
satisfaction, cancellation, subordination or rescission specifically
disclosed in a written instrument that (A) was entered into prior to
the Cut-off Date, (B) has been recorded in the applicable public
recording office if necessary to maintain the priority of the lien of
the related Mortgage and related Security Agreements, if any, and (C)
is being delivered to the Trustee or Custodian as part of the related
Mortgage File. No material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage, in each case,
in any manner which materially and adversely affects the use or
operation of the Mortgaged Property, the value of the Mortgage Loan or
materially interferes with the security intended to be provided by
such Mortgage.
(ix) No Insolvency. To the knowledge of the Mortgage Loan Seller, neither
the Mortgagor nor any guarantor is a debtor in any state or federal
bankruptcy or insolvency proceeding or any regulatory proceeding.
(x) No Proceedings. To the knowledge of the Mortgage Loan Seller, as of
the Closing Date, there is no pending action, suit or proceeding,
arbitration or governmental investigation against a Mortgagor or
Mortgaged Property, an adverse outcome of which would materially and
adversely affect such Mortgagor's ability to perform under the related
Mortgage Loan.
(xi) Single-Purpose Borrower. (A) The Mortgagor is a single purpose entity,
(B) the Mortgage Loan Seller has no knowledge that the Mortgagor is
not a single purpose entity, and (C) the Mortgagor is organized under
the laws of a state, territory or district of the United States. For
purposes of this representation, "single-purpose entity" shall mean an
entity, other than an individual, the organizational documents of
which limit its purpose to owning and operating a single property or
group of properties, and provides that it shall not engage in any
business unrelated to such property
I-2
<PAGE>
and its financing, have any assets other than those related to its
interest in the related Mortgaged Property or its financing, or have
any indebtedness other than as permitted under the related Mortgage
Loan, and with respect to a Mortgagor of a Mortgage Loan in excess of
$15 million, provides that it shall maintain its own books, records
and accounts, in each case which are separate and apart from the
books, records and accounts of any other person, conduct its business
in its own name, not guarantee or assume the debts or obligations of
any other person, not commingle its assets or funds with those of any
other person, transact business with affiliates on an arm's length
basis and hold itself out as being a legal entity, separate and apart
from any other person.
(xii) Mortgagor Is The Sole Owner of Interest in Lease Payments. No person
other than the Mortgagor owns any interest in any payments due under
the leases relating to the Mortgaged Property that is superior to or
of equal priority with the Mortgage Loan Seller's interest therein.
(xiii) Defeasance; No REMIC Disqualification. With respect to any Mortgage
Loan that pursuant to the Mortgage Loan Documents can be defeased, (A)
the Mortgage Loan cannot be defeased within two years of the Closing
Date and such defeasance must otherwise comply with the REMIC
Provisions, (B) the Mortgagor can pledge only United States government
securities (within the meaning of section 2(a)(16) of the Investment
Company Act of 1940) as the substitute collateral, in an amount
sufficient to make all scheduled payments under the Mortgage Note when
due, as certified by a independent certified public accountant, and
(C) the Mortgagor can be required by the Master Servicer to establish
that the release of the lien is to facilitate the disposition of the
Mortgaged Property or is in connection with some other customary
commercial transaction and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real
estate mortgages.
(xiv) REMIC Qualification. The Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulation Section
1.860G-2(f)(2) that treats a defective obligation as a "qualified
mortgage" or any substantially similar successor provision) and any
and all Percentage Premiums and Yield Maintenance Charges constitute
"customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
(xv) Existing Indebtedness. There are no subordinate or pari passu
Mortgages encumbering the related Mortgaged Property, no preferred
equity interests held by the Mortgage Loan Seller or mezzanine debt
related to such Mortgaged Property.
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(xvi) No Additional Indebtedness. The Mortgage Loan prohibits the related
Mortgagor from mortgaging or otherwise encumbering the Mortgaged
Property and from carrying any additional indebtedness except in
connection with (A) trade debt and equipment financings in the
ordinary course of Mortgagor's business and (B) liens arising by
operation of law that are contested in accordance with the terms of
the Mortgage Loan.
(xvii) Annual Reports. The Mortgage Loan requires the related Mortgagor to
provide annual operating statements, rent rolls, and other information
that the holder of the Mortgage Loan may reasonably request in
connection with the related Mortgagor and the related Mortgaged
Property.
(xviii) Proceeds Fully Disbursed. The proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances
thereunder and the Mortgage Loan Seller covenants that it will not
make any future advances under the Mortgage Loan to the related
Mortgagor. No advance of funds (other than the initial disbursement of
proceeds) has been made by the Mortgage Loan Seller, any affiliate or
any third party originator to the related Mortgagor and no funds have
been received from or on behalf of any person other than the related
Mortgagor for, or on account of, payments due on the Mortgage Loan.
(xix) No Negative Amortization. Other than the ARD Loans, which may have
negative amortization from and after their respective Anticipated
Repayment Dates, the Mortgage Loan does not provide for a shared
appreciation or equity participation feature, any other contingent or
additional interest feature or the negative amortization of interest.
(xx) Whole Loan. The Mortgage Loan is a whole loan and not a participating
interest in a mortgage loan. Neither Mortgage Loan Seller nor any
affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan other than contributions made
on or prior to the closing date.
(xxi) Cross-Collateralization. The Mortgage Loan is not cross-collateralized
with any mortgage loan that is not included in the Trust.
(xxii) Conditions for Releases of Mortgaged Property. Except in connection
with Mortgage Loans that are cross-collateralized and Mortgage Loans
that are secured by more than one Mortgaged Property, the Mortgage
Loan does not require the Mortgage Loan Seller to release any portion
of the related Mortgaged Property from the lien of the related
Mortgage except upon (A) payment in full of all amounts due under the
related Mortgage Loan, (B) releases of unimproved out-parcels, (C)
releases of portions of the Mortgaged Property that will not have a
material adverse
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effect on the adequacy of the remaining collateral for the Mortgage
Loan or (D) substitution of government securities for such Mortgaged
Property in a defeasance complying with Treasury Regulations Section
1.860G-2(a)(8).
(xxiii) Documents Valid. Each related Mortgage Note, Mortgage, Assignment of
Leases (if any) and other agreement executed in connection with each
Mortgage Loan is the legal, valid and binding obligation of the
related Mortgagor, enforceable in accordance with its terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxiv) Assignments of Leases Create First Priority Security Interest. Unless
the related Mortgaged Property is owner occupied, the Mortgage File
for such Mortgage Loan contains an Assignment of Leases, either as a
separate instrument or incorporated into the related Mortgage, which
creates in favor of the holder thereof a valid, collateral or first
priority assignment of, or a valid first priority security interest
in, certain rights under the related leases, subject only to a license
granted to the related Mortgagor to exercise certain rights and to
perform certain obligations of the lessor under such leases, including
the right to operate the related Mortgaged Property. Each related
assignment of Mortgage from the Mortgage Loan Seller to the Trustee
and any related reassignment of Assignment of Leases, if any, or
assignment of any other agreement executed in connection with each
Mortgage Loan, from the Mortgage Loan Seller to the Purchaser (or the
Trustee as its assignee) has been duly authorized, executed and
delivered by the Mortgage Loan Seller, is in recordable form, as
appropriate, in order to validly and effectively convey the Mortgage
Loan Seller's interest therein to the Purchaser (or the Trustee as its
assignee) and constitutes the legal, valid, binding and enforceable
assignment from the Mortgage Loan Seller to the Purchaser (or Trustee
as its assignee) except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption or other laws affecting the enforcement of creditors'
rights generally or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(xxv) Mortgages and Security Agreements Create First Lien. The Mortgage is a
valid and enforceable first lien on the related Mortgaged Property
subject only to (A) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate,
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materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the
related Mortgagor's ability to pay its obligations when they become
due or the value of the Mortgaged Property and (C) the exclusions and
exceptions (general and specific) set forth in a lender's title
insurance policy, none of which, individually or in the aggregate,
materially interferes with the current use of the related Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage or with the related Mortgagor's ability to
pay its obligations when they become due or the value of the Mortgaged
Property. As of the date of origination of such Mortgage Loan and as
of the Closing Date, such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy. Any Security Agreement,
chattel mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a valid and
enforceable first lien on and first priority security interest in the
personal property described therein (including hotel revenues with
respect to a Mortgaged Property that is operated as a hotel), except
as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxvi) No Defenses to Payment. The Mortgage Loan is not subject to any right
of rescission, set-off, abatement, diminution, valid counterclaim or
defense (except with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any Default Interest,
late charges, Prepayment Premiums and Yield Maintenance Charges)
including the defense of usury, available to the related Mortgagor
with respect to such Mortgage Note, Mortgage, Assignment of Leases and
other agreements.
(xxvii) Mortgage Loan Documents Comply With Law. The terms of each of the
Mortgage Loan Documents comply in all material respects with all
requirements of applicable local, state or federal law.
(xxviii) Customary Provisions. The related Mortgage contains customary and
enforceable (subject to bankruptcy, insolvency, moratorium, redemption
or other similar laws affecting creditors' rights generally or by
general principles of equity) provisions so as to render the rights
and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable, non-judicial
foreclosure, and there is no exemption available to the Mortgagor
which would interfere with such right to foreclose
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(except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally
or by general principles of equity).
(xxix) Mortgagor's Interest in Mortgaged Property. The interest of the
related Mortgagor in the related Mortgaged Property consists of a fee
simple estate and/or a leasehold estate in all of the real property
constituting a part of the Mortgaged Property.
(xxx) Recorded Instruments. The Mortgage has been properly recorded in the
applicable jurisdiction and the assignment of Mortgage for each
Mortgage Loan is in recordable form for the applicable jurisdiction
and constitute the legal, valid and binding assignment of such
Mortgage Loan. The full amount of the Mortgage has been recorded on
each related Mortgaged Property, and all applicable mortgage recording
taxes have been paid.
(xxxi) UCC Financing Statements. A Form UCC-1 financing statement has been
submitted for filing or recordation with respect to personal property
constituting a part of the related Mortgaged Property as to which a
security interest can be perfected by filing (including hotel revenues
with respect to a Mortgaged Property that is operated as a hotel), and
a copy of each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement has been executed by the Mortgage Loan Seller in
blank which the Trustee or its designee is authorized to complete and
to file in the filing office in which such financing statement was
filed (and but for the insertion of the name of the assignee and any
related filing information which is not yet available to the Mortgage
Loan Seller is in suitable form for filing).
(xxxii) Collateral. The Mortgage Note is not and has not been secured by any
collateral other than collateral covered by the related Mortgage, the
related Assignment of Leases (if any) and any other agreement executed
in connection with the origination of the Mortgage Loan.
(xxxiii) Borrower's Licenses and Permits. As of the date of origination of each
Mortgage Loan, and, to the Mortgage Loan Seller's knowledge, as of the
Cut-off Date, each related Mortgagor was in possession of all material
licenses, permits and other authorizations necessary and required by
all applicable laws for the conduct of its business and all such
licenses, permits and authorizations were valid and in full force and
effect.
(xxxiv) No Usury Violation; Compliance with Law. The Mortgage Rate (exclusive
of any excess interest on an ARD Loan after the related Anticipated
Repayment Date and any Default Interest, late charges, Prepayment
Premiums and Yield Maintenance Charges) of each Mortgage Loan complied
as of the date of origination with, or is exempt from, applicable
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state or federal laws, regulations and other requirements pertaining
to usury; and any and all other requirements of any federal, state or
local laws, including, without limitation, truth-in-lending, real
estate settlement procedures, equal credit opportunity or disclosure
laws, applicable to each Mortgage Loan have been complied with as of
the date of origination of each Mortgage Loan.
(xxxv) Acceleration Provisions. Each related Mortgage or loan agreement
contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the
holder of the Mortgage Loan, the related Mortgaged Property, or any
controlling interest therein in the Mortgagor, is directly or
indirectly transferred or sold (other than transfers for estate
planning purposes, other purposes where no change of control occurs or
such transfers which have been pre-approved to transferees which
otherwise have met the Mortgage Loan Seller's underwriting criteria)
or encumbered in connection with subordinate financing (other than any
indebtedness described in clauses (xv) and (xvi) above) and each
related Mortgage or loan agreement prohibits the pledge or encumbrance
of the Mortgaged Property without the consent of the holder of the
Mortgage Loan. The Mortgage or loan agreement requires the obligor to
pay all reasonable fees and expenses associated with securing the
consent of the holder of the Mortgage Loan.
(xxxvi) Non-Recourse Mortgage Loan. The Loan Documents for the Mortgage Loan
provide that such Mortgage Loan is non-recourse to the related parties
thereto except for certain acts including the fraud, willful
misconduct or material misrepresentation by the related Mortgagor
and/or its affiliates, in which case, except as specified in Exhibit
D, either (A) such Mortgage Loan shall become a recourse obligation of
another person, or (B) another person shall assume liability for any
losses incurred by the Mortgage Loan Seller or its assignee due to
such acts. Additionally, the Mortgage Loan Documents for the Mortgage
Loan provide that, except as specified in Exhibit D, another person
shall assume liability for any losses incurred by the Mortgage Loan
Seller or its assignee due to (1) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards,
(2) acts of waste and (3) breaches of any environmental covenants
contained in the related Mortgage Loan Documents.
(xxxvii) Mortgages Secured by Deeds of Trust. With respect to each Mortgage
which is a deed of trust, a trustee which, to the knowledge of the
Mortgage Loan Seller is duly qualified under applicable law to serve
as such, has been properly designated and currently so serves and is
named in the deed of trust or has been substituted in accordance with
applicable law, and except in connection with a trustee's sale after a
default by the related Mortgagor
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or in connection with the release of the related Mortgaged Property,
no fees are or will become payable to such trustee.
(xxxviii) Escrows. All amounts required to have been deposited with the Mortgage
Loan Seller by each Mortgagor under the Mortgage Loan Documents have
been deposited and are in the possession or under the control of the
Mortgage Loan Seller or its agent. All of the Mortgage Loan Seller's
interest in these amounts will be conveyed to the Trust. All
requirements for escrows are memorialized in one or more written
agreements that are contained within the Mortgage File for such
Mortgage Loan.
(xxxix) Property Condition. To the Mortgage Loan Seller's knowledge, based
upon a site inspection conducted in connection with the origination of
the Mortgage Loan and a review of the related engineering report, each
related Mortgaged Property is free and clear of any material damage
that would affect materially and adversely the use or operation or
value of such Mortgaged Property as security for the Mortgage Loan;
the Mortgage Loan Seller has received no actual notice of (A) any
proceeding pending for the total or partial condemnation of such
Mortgaged Property or (B) any damage to such Mortgaged Property that
materially and adversely affects the use or operation or value of such
Mortgaged Property.
(xl) No Delinquent Charges. There are no delinquent taxes, ground rents,
insurance premiums or assessments (including, without limitation,
assessments payable in future installments or other similar
outstanding charges, water charges or sewer rents) affecting the
Mortgaged Property or such amounts, if existing and in dispute, have
been escrowed or covered by a letter of credit. For purposes of this
representation, an obligation shall become "delinquent" on the date on
which both of the following conditions are satisfied: (A) interest
and/or penalties are due with respect to the unpaid amount and (B)
enforcement action can be taken by the related taxing authorities.
(xli) No Encroachments. All improvements included in any MAI appraisals are
within the boundaries of the related Mortgaged Property, with the
exception of de minimis encroachments, and the Mortgage Loan Seller
has obtained title insurance insuring against any losses arising from
such de minimis encroachments. No improvements on adjoining properties
encroach upon the Mortgaged Property except for de minimis
encroachments or encroachments as to which the Mortgage Loan Seller
has obtained title insurance coverage insuring against losses arising
from such encroachments.
(xlii) Mortgaged Property Compliance with Zoning Laws Etc. The improvements
located on or forming part of each Mortgaged Property
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materially comply with applicable zoning and building laws, ordinances
and regulations, or constitute a legal non-conforming use or structure
or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the use or operation or value
of the related Mortgaged Property.
(xliii) Permanent Financing. The Mortgage Loan was not originated for the
purpose of financing the construction of uncompleted improvements on
the related Mortgaged Property.
(xliv) Property Inspections. Except as specified on Exhibit D, the Mortgage
Loan Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months.
(xlv) Access. Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, is served by public utilities and services
generally available in the surrounding community and otherwise
appropriate for the use in which the Mortgaged Property is currently
being utilized, and is a separate tax parcel.
(xlvi) First Priority Lien Insured. The lien of each related Mortgage is a
first priority lien on the fee or leasehold interest of the related
Mortgagor in the original principal amount of the related Mortgage
Loan or allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related Mortgage) and is
insured by an ALTA lender's title insurance policy or its equivalent
(or a binding commitment therefor), insuring the Mortgage Loan Seller,
its successors and assigns in the original principal amount of the
Mortgage Loan, subject only to (A) the lien of current real property
taxes, ground rents, water charges, sewer rents and assessments not
yet due and payable, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially interferes with
the current use of the Mortgaged Property or the security intended to
be provided by such Mortgage or with the Mortgagor's ability to pay
its obligations when they become due or the value of the Mortgaged
Property and (C) the exclusions and exceptions (general and specific)
set forth in such policy, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage or with the related Mortgagor's ability to
pay its obligations when they become due or the value of the Mortgaged
Property. The premium for such policy was paid in full; such policy
was issued by a title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is located and is
assignable to the Purchaser and the Trustee without the consent of or
any notification to the insurer, and is in
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full force and effect upon the consummation of the transactions
contemplated by this Agreement; no claims have been made under such
policy and the Mortgage Loan Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or
omission, which would impair or diminish the coverage of such policy.
Such policy contains no exclusions for or affirmatively insures
(except for any Mortgaged Property located in jurisdictions where such
affirmative insurance is not available) (a) access to a public road,
and (b) that the area shown on the survey is the same as the property
legally described in the Mortgage.
(xlvii) Environmental Matters. Except as specified on Exhibit D, a Phase I
environmental report, and with respect to certain Mortgage Loans, a
Phase II environmental report, was conducted by a reputable
environmental engineer in connection with such Mortgage Loan within 12
months preceding the Closing Date, which report did not indicate any
material non-compliance or material existence of hazardous material
or, if any material non-compliance or material existence of hazardous
materials was indicated in any such report, the remedial action
recommended to be taken in the report has been taken, or funds
sufficient to cover any recommended remedial action have been escrowed
by the related Mortgagor and held by the Mortgage Loan Seller under
the related Mortgage has the obligation to remedy such condition or
circumstance. To the best of the Mortgage Loan Seller's knowledge, in
reliance on such environmental reports, each Mortgaged Property is in
material compliance with all applicable federal, state and local laws
pertaining to environmental hazards other than as disclosed in such
environmental reports, and to the best of the Mortgage Loan Seller's
knowledge, no notice of violation of such laws has been issued by any
governmental agency or authority, except as indicated in certain
environmental reports; the Mortgage Loan Seller has not taken any
action which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws pertaining to
environmental hazards. Each Mortgagor represents and warrants in the
related Mortgage Loan Documents that except as set forth in certain
environmental reports and to the best of its knowledge it has not
used, caused or permitted to exist and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in
any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. Each Mortgagor (or an
affiliate thereof) has agreed to indemnify, defend and hold the
Mortgage Loan Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including
attorney's fees and costs) paid,
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incurred or suffered by, or asserted against, any such party resulting
from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage
Loan.
(xlviii) Additional Insurance. The Mortgage Loan requires that the Mortgaged
Property be covered by the following insurance policies naming the
Mortgagee and its successors and assigns as additional insured, in an
amount at least equal to the lesser of the value of the replacement
cost of the related Mortgaged Property or the principal balance of the
related Mortgage Loan, and sufficient to avoid the operation of any
co-insurance provisions: (A) fire and extended perils (included within
the classification "All Risk of Physical Loss"), (B) except as
specified in Exhibit D, 12 months (or 18 months for a Mortgaged
Property which is not an office, retail, self-storage, industrial,
multifamily, mobile home park or mixed use of the foregoing) of
business interruption or rental loss insurance, (C) flood insurance
if, based solely on a flood zone certification or a survey of the
related Mortgaged Property, the property improvements are located in a
100-year flood plain, or if any portion of the improvements on the
Mortgaged Property is located in a federally designated flood area "A"
and (D) comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties. All premiums
on such insurance policies required to be paid as of the Cut-off Date
have been paid; such insurance policies may not be terminated or
canceled without 30 days prior written notice to the insured (for
defaults other than non-payment, for which there is a minimum of 10
days written notice of cancellation) and no such notice has been
received by the insured. Except as set forth in Exhibit D, the
insurance provider of each such insurance policy has an A.M. Best's
rating of at least "A:X" or a claims paying ability rating of at least
"A" from Standard & Poor's or DCR, or its equivalent. Each related
Mortgage Loan obligates the related Mortgagor to maintain all such
insurance and, at such Mortgagor's failure to do so, authorizes the
mortgagee to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from such Mortgagor.
(xlix) Application of Insurance and Condemnation Proceeds. Subject to clause
lxi(K) with respect to ground lease properties, any insurance proceeds
in respect of a casualty loss or taking, will be applied either to (A)
the repair or restoration of all or part of the related Mortgaged
Property or (B) to the payment of the outstanding principal balance of
such Mortgage Loan together with any accrued interest thereon, except
that in the case of a ground-leased property casualty and condemnation
proceeds are required to be paid first to the owner of the fee
interest in the related property in accordance with terms of the
related ground lease and then in accordance with the related Mortgage.
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(l) Terms of Mortgage. The Mortgage Loan is directly secured by a Mortgage
on a commercial, industrial, self-storage, health-care related,
retail, office, fitness center, mixed use, hospitality, mobile home
park or multifamily residential property, and either (A) substantially
all of the proceeds of the Mortgage Loan were used to acquire, improve
or protect an interest in such real property which, as of the
origination date, was the sole security for such Mortgage Loan (unless
the Mortgage Loan has been modified in a manner that constituted a
deemed exchange under Section 1001 of the Code at a time when the
Mortgage Loan was not in default or default with respect thereto was
not reasonably foreseeable) or (B) the fair market value of such real
property was at least equal to 80% of the principal amount of the
Mortgage Loan (1) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange under Section
1001 of the Code at a time when the Mortgage Loan was not in default
or default with respect thereto was not reasonably foreseeable, at the
date of the last such modification) or (2) at the Closing Date;
provided that the fair market value of the real property interest must
first be reduced by (I) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such senior lien
also secures a Mortgage Loan, in which event the computation described
in clauses (1) and (2) shall be made on an aggregate basis) and (II) a
proportionate amount of any lien that is in parity with the Mortgage
Loan (unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (B)(1) and (B)(2) shall be made on an
aggregate basis).
(li) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property, which appraisal is signed by a qualified
appraiser, who, to the best of the Mortgage Loan Seller's knowledge,
had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan; the appraisal and appraiser both satisfy the
requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage Loan was
originated.
(lii) [Intentionally Omitted].
(liii) [Intentionally Omitted].
(liv) ARD Loans. If such Mortgage Loan is an ARD Loan it provides that:
(A) Its Mortgage Rate will increase by no more than two percentage
points from and after its Anticipated Repayment Date;
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(B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan;
(C) either (a) on the Closing Date, each ARD Loan will have a
lockbox in place, or (b) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related
Mortgagor is required to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property shall
be deposited into a designated account controlled by the
Servicer;
(D) any cash flow from the related Mortgaged Property that is
applied to amortize an ARD Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in
excess of the monthly payment payable therefrom, be net of
budgeted capital expenditures and capital expenditures that
may be approved by the Servicer in accordance with the terms
of the Pooling and Servicing Agreement.
(E) each ARD Loan is being amortized as of the Cut-off Date and is
not currently subject to an interest-only period;
(F) the holder of each ARD Loan may not exercise any payment
default remedies if Mortgagor pays scheduled principal and
interest (at the related Mortgage Rate);
(G) The property manager cannot be removed for the sole reason
that the ARD Loan continues to be outstanding after its
Anticipated Repayment Date.
(lv) Health Care Facilities. If the Mortgage Loan is secured by a nursing
home or skilled living facility:
(A) To the best of the Mortgage Loan Seller's knowledge, the
health care facility located on the related Mortgaged Property
and the related owner and/or operator with respect to such
facility had all material certificates, licenses and permits
required by applicable law for the operation of such facility
for its current use and, to the extent that such facility
participates in Medicaid, Medicare, or any other similar third
party payor program, the facility, the owner and/or the
operator possesses current provider agreements for such
programs, appropriate for the degree of care administered at
each facility.
(B) To the best of the Mortgage Loan Seller's knowledge, the
related owner or operator, with respect to the related
Mortgaged Property or its operation of the related Mortgaged
Property, was in compliance in all material respects with all
applicable laws, regulations, quality and safety standards and
requirements of the applicable state department
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of health, and the Mortgage Loan Documents require that so
long as the Mortgage Loan remains outstanding the related
Mortgaged Property shall be operated in compliance in all
material respects with such applicable laws and requirements.
(C) The related Mortgage Loan Documents provide that:
(1) so long as the Mortgage Loan remains outstanding, the
related Mortgaged Property shall be operated in such a
manner that the licenses, permits and authorizations
shall remain in full force and effect,
(2) without the lender's consent, the licenses, permits and
authorizations may not be
(I) transferred to any location other than the
Mortgaged Property
(II) pledged as collateral for any other loan or
indebtedness
(3) so long as the related Mortgage Loan remains
outstanding, the Mortgagor may not without the lender's
consent
(I) rescind, withdraw, revoke, amend, modify,
supplement or otherwise alter the nature or scope
of the certificates, licenses and permits for the
related Mortgaged Property.
(II) amend or otherwise reduce the related Mortgaged
Property's authorized bed capacity and/or the
number of beds approved by the applicable state
department of health,
(III) replace or transfer all or any part of any related
Mortgaged Property's beds to an other site or
location or
(IV) terminate, materially modify, or materially amend
the operating lease or management contract in
effect with regard to the related Mortgaged
Property.
(4) the licenses, permits and authorizations are held free
from restrictions or known conflicts which would
materially impair the use or operation of the Mortgaged
Property, and are not provisional, probationary or
restricted in any way.
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(D) since origination, the Mortgage Loan Seller has not received
notice that the related owner or related operator as the case
may be, has failed to file within the time permitted,
including any extensions thereof, all such Medicare, Medicaid
or other similar program cost reports;
(E) since origination, the Mortgage Loan Seller has not received
notice that either the related owner or operator, as the case
may be, with respect to the related Mortgaged Property, or its
operation of such Mortgaged Property, (A) is subject to a
material audit adjustment with respect to its participation in
any third-party payor program or (B) has been notified that
any managed care or other third-party payor program contract
is being or has been canceled, not renewed, or downgraded in
any material respect or that any such action is pending,
threatened, or contemplated.
(lvi) [Intentionally Omitted].
(lvii) Mortgage Loans Not Originated by Mortgage Loan Seller. With respect to
each Mortgage Loan originated by a correspondent of the Mortgage Loan
Seller and purchased or "table funded" by the Mortgage Loan Seller in
connection with a correspondent relationship with such originator:
(A) such Mortgage Loan was underwritten substantially in
accordance with standards established by the Mortgage Loan
Seller, (which standards are in all material respects the same
as the underwriting standards for Mortgage Loans originated by
the Mortgage Loan Seller);
(B) such Mortgage Loan was originated pursuant to an ongoing,
standing relationship with the Mortgage Loan Seller;
(C) the closing documents (which include assignment documents
executed by the Mortgage Loan originator in favor of the
Mortgage Loan Seller at the time of the closing of the
Mortgage Loan) for the Mortgage Loan were prepared in
substantial compliance with forms approved by the Mortgage
Loan Seller, and reflect the Mortgage Loan Seller as the
successor and assign to the Mortgage Loan originator; and
(D) such Mortgage Loan either was actually funded by and assigned
to the Mortgage Loan Seller at the closing thereof, or was
funded initially by the Mortgage Loan originator at the
closing thereof and then acquired by the Mortgage Loan Seller
from such Mortgage Loan originator pursuant to its ongoing,
standing relationship with the Mortgage Loan Seller.
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<PAGE>
(lviii) Origination. Each Mortgage Loan originated by the Mortgage Loan Seller
was underwritten consistent in all material respects with the
standards of the Mortgage Loan Seller as then in effect and each
Mortgage Loan purchased by the Mortgage Loan Seller from a third-party
originator was underwritten consistent in all material respects with
prudent commercial mortgage conduit lending standards.
(lix) Waivers. The Mortgage Loan Seller and, to the Mortgage Loan Seller's
knowledge, any prior holder of the Mortgage Loan has not waived any
default, breach, violation or event of acceleration under the related
Mortgage or Mortgage Note. No foreclosure action or other form of
enforcement is or has been threatened or commenced with respect to any
Mortgage.
(lx) Qualification. To the extent required under applicable law as of the
Closing Date and necessary for the enforceability or collectibility of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan.
(lxi) Ground Leases. With respect to any Mortgage Loan where all or a
material portion of the estate of the related Mortgagor therein is a
leasehold estate, based upon the terms of the ground lease and any
estoppel received from the ground lessor, the Mortgage Loan Seller
represents and warrants that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee or its successors or assigns in a manner that
would adversely affect the security provided by the related
Mortgage. To the Mortgage Loan Seller's knowledge, there has
been no material change in the terms of the ground lease since
its recordation, except by any written instruments which are
included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in a writing
included in the related Mortgage File that the ground lease
may not be amended, modified, canceled or terminated without
the prior written consent of the Mortgage Loan Seller and its
successors and assigns unless the holder of the Mortgage Loan
fails to cure a Mortgagor ground lease default after
applicable notice and cure periods;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be
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<PAGE>
exercised, and will be enforceable, by the Mortgage Loan
Seller) that extends not less than 20 years beyond the
Maturity Date (or Anticipated Repayment Date) of the related
Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Mortgage Loan Seller, the ground
lease is not subject to any liens or encumbrances superior to,
or of equal priority with, the lien of the Mortgage (other
than any indebtedness described in clauses (xv), (xvi) and
(xxv)) and provides that it shall remain prior to any mortgage
or other lien on the ground lessor's fee interest);
(E) The ground lease is assignable to the Mortgage Loan Seller and
its successors and assigns under the related leasehold estate
without the consent of the lessor thereunder, and in the event
that such ground lease is so assigned, it is further
assignable by the Depositor and its successors and assigns
upon notice to (and such notice has been given), but without a
need to obtain the consent of the lessor;
(F) As of the closing date of the related Mortgage Loan, the
ground lease is in full force and effect, the Mortgage Loan
Seller has received no notice that any default beyond
applicable notice and grace periods has occurred, and there is
no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of
the ground lease;
(G) The ground lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default
by the lessee to the Mortgage Loan Seller or its assignee and
pursuant to such agreement, no notice given thereunder is
effective against the Mortgage Loan Seller (or its assignee)
unless a copy has been given to the Mortgage Loan Seller (or
its assignee) in the manner prescribed in the ground lease or
ancillary agreement;
(H) A Mortgage Loan Seller or its assignee is permitted a
reasonable opportunity (including, where necessary, sufficient
time to gain possession of the interest of the lessee under
the ground lease through legal proceedings, or to take other
action so long as the Mortgage Loan Seller or its assignee is
proceeding diligently) to cure any default under the ground
lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease, and
all rights of the Mortgagor under such ground lease may be
exercised by or on behalf of the mortgagee.
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by an institutional
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investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of
the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner,
which would materially and adversely affect the security
provided by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the
Mortgage Loan Seller or its assignee or a trustee appointed by
it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest, except that in the case of
condemnation awards, the ground lessor may be entitled to a
portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking to
the related Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as provided
by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any
institutional investor, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the Mortgage Loan Seller
or its assignee as a result of any casualty loss or partial
condemnation, except to provide for an abatement of the rent
or otherwise in accordance with the standard provisions of the
related Mortgage;
(L) Provided that the Mortgage Loan Seller cures any defaults
which are susceptible of being cured, the lessor has agreed to
enter into a new lease with the Mortgage Loan Seller upon
termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding.
(M) Except as set forth in Exhibit D, the ground lease does not
permit any increase in the amount of rent payable by the
lessee thereunder during the term of the Mortgage Loan.
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(lxii) Servicing. Other than the Retained Interest, no person other than the
Mortgage Loan Seller has been granted or conveyed the right to service
the Mortgage Loan or to receive any consideration in connection
therewith.
(lxiii) Borrower Concentration. Except as specified in Exhibit D, as of the
Closing Date, not more than 5% of the aggregate outstanding principal
amount of the Mortgage Loans have the same Mortgagor or to the
Mortgage Loan Seller's best knowledge, have Mortgagors that are
affiliates of each other.
(lxiv) Due Dates. Except as specified in Exhibit D, the Mortgage Loan has a
late charge which may be assessed prior to the 15th day of the month.
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Schedule II
Schedule II
List of Agreements under which the Mortgage Loan Seller acquired rights
in the Mortgage Loans as provided in Section 3.7 of this Agreement
None.
II-1
