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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): April 3, 1996
MERRILL LYNCH MORTGAGE INVESTORS, INC.
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(Exact name of registrant as specified in its governing instruments)
Delaware 333-1704 13-3416059
- ---------------------------- ------------------------ ------------------
(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
(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 Item 8 are not included because they are not
applicable.
Item 2. Acquisition or Disposition of Assets.
On April 3, 1996, a single series of mortgage pass-through certificates,
entitled Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-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 April 1, 1996, among Merrill Lynch Mortgage
Investors, Inc. as depositor (the "Registrant"), GE Capital Asset Management
Corporation as master servicer, GE Capital Realty Group, Inc. as special
servicer and Bankers Trust Company of California, N.A. as trustee. The
Certificates consist of fourteen classes (each, a "Class") of Certificates,
seven of which Classes are designated as the "Class A-1 Certificates", the
"Class A-2 Certificates", the "Class A-3 Certificates", the "Class A-PO
Certificates," the "Class B Certificates", the "Class C Certificates" and the
"Class D Certificates" (collectively, the "Offered Certificates"); and seven of
which Classes are designated as the "Class E Certificates", the "Class F
Certificates", the "Class G Certificates", the "Class IO Certificates", the
"Class R-I Certificates", the "Class R-II Certificates" and the "Class R-III
Certificates" (collectively, the "Private Certificates"). The Certificates
evidence in the aggregate the entire beneficial ownership interest in a trust
fund (the "Trust Fund") consisting primarily of 159 multifamily and commercial
mortgage loans (the "Mortgage Loans") having an aggregate principal balance as
of the Cut-off Date of $647,219,459. Each Mortgage Loan is secured by a first
mortgage lien on a fee simple with the exception of four Mortgage Loans which
are fully secured by a leasehold estate in income-producing real property and
one Mortgage Loan which is partially secured by a leasehold estate in
income-producing real property.
Seventy-four (74) of the Mortgage Loans (the "MLMC Loans") showing an
aggregate principal balance of $347,522,166 (the "MLMC Balance"), were acquired
by the Registrant from Merrill Lynch Mortgage Capital Inc. ("MLMC") and
eight-five (85) of the Mortgage Loans (the "FUNBNC Loans"), having an aggregate
principal balance of $299,697,293 (the "FUNBNC Balance"), were acquired by the
Registrant from First Union National Bank of North Carolina ("FUNBNC," and
together with MLMC, the "Sellers") pursuant to two Mortgage Loan Purchase
Agreements, each dated as of April 1, 1996 (the "Purchase Agreements"), between
the Registrant and each of the Sellers. The purchase prices (collectively the
"Purchase Price") for the MLMC Loans and the FUNBNC Loans paid by the Registrant
to the Sellers consisted of (i) a cash amount equal to 97.890625% of the MLMC
Balance and 98.79% of the FUNBNC Balance plus (ii) interest accrued on
each of the MLMC Loans and the FUNBNC Loans at the related Net Mortgage Rate,
for the period from and including the Cut-off Date up to but not including the
Closing Date. 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 First Union Capital
Markets Corp. ("First Union") pursuant to an underwriting agreement, dated as of
March 29, 1996 (the "Underwriting Agreement"), among the Registrant, MLPF&S and
First Union (pertaining to the Offered Certificates) and a Certificate Purchase
Agreement, dated as of March 29, 1996, among the Registrant, MLPF&S and First
Union (pertaining to the Private Certificates). The Registrant is a wholly-owned
limited purpose finance subsidiary
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of MLMC. On April 3, 1996, the Registrant transferred the Mortgage Loans to the
Trust Fund. The consideration received by the Registrant in exchange for such
transfer consisted of the Certificates.
The Certificates have the following initial Certificate Balances and
initial Pass-Through Rates:
<TABLE>
<CAPTION>
Initial Pass-Through
Class Initial Certificate Balance Rate
<S> <C> <C>
A-1.......................... $182,300,000 7.15%
A-2.......................... $27,813,000 7.24%
A-3.......................... $226,505,616 7.42%
A-PO......................... $254,384 (3)
B ........................... $38,833,000 7.42%
C ........................... $38,833,000 7.42%
D ........................... $32,361,000 7.42%
E .......................... $48,541,000 7.42%
F .......................... $32,361,000 7.42%
G .......................... $19,417,459 7.42%
IO ......................... (1) (1)
R-I.......................... N/A(2) N/A(2)
R-II......................... N/A(2) N/A(2)
R-III........................ N/A(2) N/A(2)
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<FN>
(1) The Class IO Certificates will receive the sum of the interest accrued on
each of its Components.
(2) The Class R-1, Class R-II and Class R-III Certificates have no Certificate
Balance and do not bear interest.
(3) The Class A-PO Certificates are not entitled to distribution of interest.
</FN>
</TABLE>
The Offered Certificates and the Mortgage Loans are more particularly
described in the Prospectus, dated March 7, 1996, and the Prospectus Supplement,
dated April 1, 1996, 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 March 29, 1996,
among Merrill Lynch Mortgage Investors, Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
and First Union Capital Markets Corp.
4.1 Pooling and Servicing Agreement, dated as of April
1, 1996, among Merrill Lynch Mortgage Investors,
Inc. as depositor, GE Capital Asset Management
Corporation as master servicer, GE Capital Realty
Group, Inc. as special servicer and Bankers Trust
Company of California, N.A. as trustee
99.1 Mortgage Loan Purchase Agreement, dated as of April
1, 1996, between Merrill Lynch Mortgage Investors,
Inc. and Merrill Lynch Mortgage Capital Inc.
99.2 Mortgage Loan Purchase Agreement, dated as of April
1, 1996, between Merrill Lynch Mortgage Investors,
Inc. and First Union National Bank of North
Carolina
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned 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: April 16, 1996
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EXHIBIT INDEX
The following exhibits are being filed herewith:
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
1.1 Underwriting Agreement, dated as of March 29, 1996, among Merrill
Lynch Mortgage Investors, Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and First Union Capital Markets Corp.........
4.1 Pooling and Servicing Agreement, dated as of April 1, 1996, among
Merrill Lynch Mortgage Investors, Inc. as depositor, GE Capital
Asset Management Corporation as master servicer, GE Capital
Realty Group, Inc. as special servicer and Bankers Trust Company
of California, N.A. as trustee.................................
99.1 Mortgage Loan Purchase Agreement, dated as of April 1, 1996,
between Merrill Lynch Mortgage Investors, Inc. and Merrill Lynch
Mortgage Capital Inc.............................................
99.2 Mortgage Loan Purchase Agreement dated as of April 1, 1996,
between Merrill Lynch Mortgage Investors, Inc. and First Union
National Bank of North Carolina..................................
</TABLE>
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MERRILL LYNCH MORTGAGE INVESTORS, INC.
UNDERWRITING AGREEMENT
As of March 29, 1996
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center, North Tower
New York, New York 10281
First Union Capital Markets Corp.
One First Union Center TW-8
301 South College Street
Charlotte, North Carolina 28288-0600
Ladies and Gentlemen:
Merrill Lynch Mortgage Investors, Inc., a Delaware corporation (the
"Company"), proposes to sell to Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and First Union Capital Markets Corp. ("First
Union"; Merrill Lynch and First Union, each, an "Underwriter" and, together, the
"Underwriters") the mortgage pass-through certificates identified in Schedule I
hereto (the "Certificates"), pursuant to this Underwriting Agreement, dated as
of March 29, 1996 (this "Agreement"), between the Company and the Underwriters.
The Certificates will evidence beneficial ownership interests in a trust
fund (the "Trust Fund") to be formed by the Company and consisting primarily of
a segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans") to be purchased from Merrill Lynch Mortgage Capital
Inc. and First Union National Bank of North Carolina (together, the "Mortgage
Loan Sellers"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of April
1, 1996 (the "Cut-off Date"), among the Company as depositor, Bankers Trust
Company of California, N.A. as trustee (the "Trustee"), GE Capital Asset
Management Corporation as master servicer and GE Capital Realty Group, Inc. as
special servicer. The Certificates and the Mortgage Loans are described more
fully in the Prospectus (as hereinafter defined) which the Company has furnished
to the Underwriters.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statement (No. 33-97652) and registration statement
(No. 333-1704; together, with registration statement (No. 33-97652), the
"Registration Statement") on Form S-3 for the registration of the 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 the Underwriters. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the 1933 Act a supplement to the form
of prospectus included in such registration statement relating to the
Certificates and the plan of distribution thereof. Such
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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, at the time the Registration Statement,
as amended, became effective, or as subsequently filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, is hereinafter called the "Basic
Prospectus"; such supplement, dated April 1, 1996 to the form of prospectus
relating to the Certificates, in the form in which it shall be filed with the
Commission pursuant to Rule 424 is hereinafter called the "Prospectus
Supplement"; and the Basic Prospectus and the Prospectus Supplement, together,
hereinafter called the "Prospectus". Any preliminary form of the Prospectus that
has heretofore been filed pursuant to Rule 424(b) is hereinafter called a
"Preliminary Prospectus".
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as follows:
(i) The Registration Statement has become effective, and the
Registration Statement as of the effective date thereof (the "Effective
Date"), and the Prospectus as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of
the 1933 Act and the rules and regulations thereunder; and the
information in the Registration Statement concerning the Company, as of
the Effective Date, did not contain any untrue statement of a material
fact and did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
information in the Prospectus concerning the Company, as of the date of
the Prospectus Supplement, did not, and as of the Closing Date (as
hereinafter defined) will not, contain an untrue statement of a material
fact and did not and will not omit to state a material fact necessary in
order to make the information therein concerning the Company, in the
light of the circumstances under which they were made, not misleading.
The parties agree that the only information concerning the Company in
the Registration Statement is on page 30 of the Basic Prospectus under
the caption "The Depositor" and on page S-6 of the Prospectus Supplement
under the caption "Summary of Prospectus Supplement--Depositor."
(ii) 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 corporate power and authority to own its properties and
to conduct its business as now conducted by it and to enter into and
perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(iii) The Company is not in violation of its charter and
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party or by which it may be bound, or to which
any of the property of the Company is subject. The execution, delivery
and performance of this Agreement and the Pooling and Servicing
Agreement and the consummation of the transactions contemplated herein
and therein and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all
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the necessary corporate action and will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property of the Company
pursuant to any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company is a party or by which it
may be bound, or to which any of the property or assets of the Company
is subject.
(iv) The Certificates have been duly authorized for issuance
and sale pursuant to this Agreement and the Pooling and Servicing
Agreement (or will have been so authorized prior to the issuance of the
Certificates) and, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and of the Pooling and Servicing
Agreement against payment of the consideration therefor in accordance
with this Agreement, the Certificates will be duly and validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
(v) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Certificates hereunder, except such as
have been, or as of the Closing Date will have been, obtained or such as
may otherwise be required under applicable state securities laws in
connection with the purchase and offer and sale of the Certificates by
the Underwriters and any recordation of the respective assignments of
the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not yet been completed.
(vi) This Agreement is, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed and
delivered by the Company. This Agreement constitutes, and as of the
Closing Date the Pooling and Servicing Agreement will constitute, 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 (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of the rights
of creditors generally, (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 this Agreement that purport to provide
indemnification from securities law liabilities.
(vii) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Company (A) will convey to the Trustee, or
cause to be conveyed to the Trustee, all of its right, title and
interest in and to the Mortgage Loans that are transferred by it to the
Trustee, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens") granted by or imposed upon the Company, (B) will not have
assigned to any person any of its right, title or interest in such
Mortgage Loans or in the Pooling and Servicing Agreement or the
Certificates, and (C) will have the power and authority to transfer such
Mortgage Loans to the Trustee and to sell the Certificates to the
Underwriters, and upon
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delivery to the Underwriters of the Certificates, each Underwriter will
have good title to the Certificates purchased by such Underwriter, in
each case free of Liens.
(viii) Neither the Company nor the Trust Fund is required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(ix) 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 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 Certificates
to the Underwriters. The Company is not selling the Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the
creditors of the Company.
(x) At the Closing Date, the respective classes of
Certificates shall have been assigned ratings no lower than those set
forth in Schedule I hereto by the nationally recognized statistical
rating organizations identified in Schedule I hereto (the "Rating
Agencies").
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the Pooling and Servicing Agreement 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.
(xii) There are no actions, proceedings or investigations
pending before or threatened by any court, administrative agency or
other tribunal to which the Company is a party or of which any of its
properties is the subject (a) which if determined adversely to the
Company would have a material adverse effect on the business or
financial condition of the Company, (b) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement or the Certificates, (c)
seeking to prevent the issuance of the Certificates or the consummation
by the Company of any of the transactions contemplated by the Pooling
and Servicing Agreement or this Agreement, as the case may be, or (d)
which might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of,
the Pooling and Servicing Agreement, this Agreement or the Certificates.
(xiii) The Company possesses all material licenses,
certificates, authorities or permits issued by appropriate state,
federal, or foreign regulatory agencies and bodies necessary to conduct
the business now conducted by it and as described in the Prospectus, and
the Company has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which if decided adversely to the Company would singly, or in
the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
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(xiv) At the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling and Servicing
Agreement will be true and correct in all material respects.
(b) Each Underwriter represents and warrants to the Company that (i)
such Underwriter, as of the date hereof, complied, and as of the Closing Date,
will comply with all of its obligations hereunder and (ii) with respect to all
Computational Materials and ABS Term Sheets, if any, provided by such
Underwriter to the Company pursuant to Section 4(b)(iv), such Computational
Materials and ABS Term Sheets, as of the date hereof, are, and as of the Closing
Date, will be accurate in all material respects (taking into account the
assumptions explicitly set forth in the Computational Materials or ABS Term
Sheets) and constitutes, as of the date hereof, and as of the Closing Date, will
constitute the complete set of all Computational Materials and ABS Term Sheets
that are required to be filed with the Commission pursuant to Section 5(i).
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance
upon the representations and warranties herein contained, the Company agrees to
sell to the Underwriters, and each Underwriter agrees to purchase from the
Company, at the related purchase price set forth on Schedule I hereto,
Certificates of each class thereof having an actual amount as set forth on
Schedule I hereto. There will be added to the purchase price of the Certificates
an amount equal to interest accrued thereon pursuant to the terms thereof from
the Cut-off Date to but excluding the Closing Date.
SECTION 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 A.M. New York City time on April 3, 1996,
which date and time may be postponed by agreement among the Underwriters and the
Company (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company, against delivery of the
Certificates. The Certificates shall be in such authorized denominations and
registered in such names as either Underwriter may request in writing at least
two business days before the Closing Date. The Certificates will be made
available for examination by the Underwriters not later than 10:00 A.M. New York
City time on the last business day prior to the Closing Date. Except as
otherwise set forth in Schedule I, delivery of the Certificates shall be made at
the office of Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd
Street, New York, New York 10022, or at such other place as shall be agreed upon
by the Underwriters and the Company.
SECTION 4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Company, in reliance upon a no-
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filing letter from the Attorney General of the State of New York granted
pursuant to Policy Statement 105, has not and will not file an offering
statement pursuant to Section 352-c of the General Business Law of the State of
New York with respect to the Certificates. Each Underwriter therefore agrees
that sales of the Certificates made by such Underwriter in and from the State of
New York will be made only to institutional investors within the meaning of
Policy Statement 105.
(b) Each Underwriter may prepare and provide to prospective investors
certain Computational Materials and ABS Term Sheets in connection with its
offering of the Certificates, subject to the following conditions:
(i) Such Underwriter shall have complied with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated and Kidder Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated May
24, 1994 (collectively, the "Kidder/PSA Letter"), and the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter" and,
together with the Kidder/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall
have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets", "Structured Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such
terms in the PSA Letter but shall include only those ABS Term Sheets,
Structured Term Sheets or Collateral Term Sheets that have been prepared
or delivered to prospective investors by or at the direction of such
Underwriter.
(iii) All Computational Materials and ABS Term Sheets provided
to prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend substantially in the form attached
hereto as Exhibit A-1 and, in the case of Collateral Term Sheets, such
legend shall also include the statement substantially in the form set
forth on Exhibit A-2. The Company shall have the right to require
specific legends or notations to appear on any Computational Materials
or ABS Term Sheets, the right to require changes regarding the use of
terminology and the right to determine the types of information
appearing therein. Notwithstanding the foregoing, this subsection (iii)
will be satisfied if all Computational Materials and ABS Term Sheets
referred to herein bear a legend in a form previously approved in
writing by the Company.
(iv) Such Underwriter shall have provided the Company with
representative forms of all Computational Materials and ABS Term Sheets
prior to their first use, to the extent such forms have not previously
been approved by the Company for use by the Underwriter. Such
Underwriter shall have provided to the Company, for filing on Form 8-K
as provided in Section 5(i), copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets that are
required to be
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filed with the Commission pursuant to the No-Action Letters. The
Underwriter may have provided copies of the foregoing in a consolidated
or aggregated form including all information required to be filed. All
Computational Materials and ABS Term Sheets described in this subsection
(iv) shall have been provided to the Company not later than 10:00 a.m.
(New York City time) not less than one business day before filing
thereof is required pursuant to the terms of this Agreement. Such
Underwriter shall have not provided to any investor or prospective
investor in the Certificates any Computational Materials or ABS Term
Sheets on or after the day on which Computational Materials and ABS Term
Sheets are required to be provided to the Company pursuant to this
subsection (iv) (other than copies of Computational Materials or ABS
Term Sheets previously submitted to the Company in accordance with this
subsection (iv) for filing pursuant to Section 5(i)), unless such
Computational Materials or ABS Term Sheets are preceded or accompanied
by the delivery of a Prospectus to such investor or prospective
investor.
(v) All information included in the Computational Materials
and ABS Term Sheets shall have been generated based on substantially the
same methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein; provided
that the Computational Materials and ABS Term Sheets may have included
information based on alternative methodologies or assumptions if
specified therein. If any Computational Materials or ABS Term Sheets
that are required to be filed were based on assumptions with respect to
the Mortgage Pool that differ from the final Pool Information in any
material respect or on Certificate structuring terms that were revised
in any material respect prior to the printing of the Prospectus, such
Underwriter shall have prepared revised Computational Materials or ABS
Term Sheets, as the case may be, based on the final Pool Information and
structuring assumptions, shall have circulated such revised
Computational Materials and ABS Term Sheets to all recipients of the
preliminary versions thereof that indicated orally to the Underwriter
they would purchase all or any portion of the Certificates, and shall
have included such revised Computational Materials and ABS Term Sheets
(marked, "as revised") in the materials delivered to the Company
pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission, provided that, at the request of
such Underwriter, the Company will file Computational Materials or ABS
Term Sheets that contain a material error or omission if clearly marked
"superseded by materials dated _____" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked, "material
previously dated _________, as corrected." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act, any Computational Materials or ABS Term
Sheets are determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or omission, the Underwriter
shall prepare a corrected version of such Computational Materials or ABS
Term Sheets, shall circulate such corrected Computational Materials or
ABS Term Sheets to all recipients of the prior versions thereof that
either indicated orally to the Underwriter they would purchase all or
any portion of the Certificates, or actually purchased all or any
portion thereof, and shall deliver copies of such corrected
Computational Materials or ABS Term Sheets (marked, "as corrected") to
the Company
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for filing with the Commission in a subsequent Form 8-K submission
(subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials and ABS Term Sheets,
which shall be at the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as
of the Closing Date, that, except for Computational Materials and/or ABS
Term Sheets provided to the Company pursuant to subsection (iv) above,
such Underwriter did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Certificates that is required to be filed with the
Commission in accordance with the No-Action Letters, and such
Underwriter shall provide the Company with a certification to that
effect on the Closing Date.
(viii) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and ABS Term
Sheets required to be delivered in accordance with subsection (iv)
above, or in the delivery of the accountant's comfort letter in respect
thereof pursuant to Section 5(i), the Company shall have the right to
delay the release of the Prospectus to investors or to the Underwriter,
to delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Company to comply with its
agreement set forth in Section 5(i) to file the Computational Materials
and ABS Term Sheets by the time specified therein.
(ix) Such Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and procedures which
it reasonably believes to be sufficient to ensure full compliance with
all applicable legal requirements of the No- Action Letters with respect
to the generation and use of Computational Materials and ABS Term Sheets
in connection with the offering of the Certificates.
(c) Each Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements with
respect to each class of Certificates to the extent such information can in the
good faith judgment of the Underwriter be determined by it.
SECTION 5. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) The Company will give each Underwriter notice of its
intention to file or prepare any amendment to the Registration Statement
at any time prior to the Closing Date or any amendment or supplement to
the Prospectus at any time hereafter, and will furnish the Underwriters
with copies of any such amendment or supplement a reasonable amount of
time prior to such proposed filing or use, as the case may be.
(b) The Company will cause the Prospectus to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the 1933 Act by
means reasonably calculated to result in filing with the Commission
pursuant to said rule.
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(c) The Company will deliver to such Underwriter a copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein).
(d) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act"), such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the
Certificates is required to be delivered under the 1933 Act, any event
shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus
so that, as so amended or supplemented, the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to such Underwriter a
reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such
states and other jurisdictions of the United States as such Underwriter
may reasonably designate and will maintain such qualification in effect
so long as required for the initial distribution of Certificates;
provided, however, that the Company shall not be obligated to qualify as
a foreign corporation in any jurisdiction in which it is not so
qualified.
(g) The Company will pay or cause to be paid all fees and
expenses of its counsel. The Underwriters shall be responsible for the
payment of all other costs and expenses incurred in connection with the
transactions.
(h) If, during the period after the Closing Date in which a
prospectus relating to the Certificates is required to be delivered
under the 1933 Act, the Company receives notice that a stop order
suspending the effectiveness of the Registration Statement or preventing
the offer and sale of the Certificates is in effect, the Company will
immediately advise such Underwriter of the issuance of such stop order.
(i) The Company will file with the Commission within fifteen days
of the issuance of the Certificates a report on Form 8-K setting forth
specific information concerning the Certificates and the Mortgage Pool
to the extent that such information is not set forth in the Prospectus.
The Company will also file with the Commission a report on Form 8-K
setting forth all Computational Materials and ABS Term Sheets provided
to the Company by either Underwriter and identified by it as such within
the time period allotted for such filing pursuant to the No-Action
Letters; provided, however,
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that prior to such filing of the Computational Materials and ABS Term
Sheets (other than any ABS Term Sheets that are not based on the Pool
Information) by the Company (A) each Underwriter must comply with its
obligations pursuant to Section 4 and (B) if the Company determines that
the methodology on which all or any part of such Computational Materials
and ABS Term Sheets were prepared is not substantially the same as (x)
the methodology on which information in the Prospectus Supplement (or
Preliminary Prospectus Supplement) was prepared or (y) a methodology
acceptable to the Company and as to the accuracy of which the Company
was otherwise given comfort satisfactory to the Company, the Company
must receive a letter from Deloitte & Touche LLP ("Deloitte"), certified
public accountants, satisfactory in form and substance to the Company,
to the effect that such accountants have performed certain specified
procedures, all of which have been agreed to the Company, as a result of
which they have determined that the information included in the
Computational Materials and ABS Term Sheets (if any) as to which the
Company has made such a determination and which they have examined in
accordance with such specified procedures is accurate except as to such
matters that are not deemed by the Company to be material. The foregoing
letter shall be at the expense of the Underwriter that provided the
Computational Materials to the Company. The Company shall file any
corrected Computational Materials described in Section 4(b)(vi) as soon
as practicable following receipt thereof.
SECTION 6. Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to
it as set forth on Schedule I hereto shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof and as of the Closing Date, to the performance by the Company of
its obligations hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending or, to the Company's knowledge, threatened by
the Commission.
(b) On the Closing Date, each Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of
counsel to the Company, in form and substance satisfactory to
such Underwriter, substantially to the effect that:
A. The Company is a corporation in good standing under the
laws of the State of Delaware and has the corporate power and
authority to enter into and perform its obligations under each of
the Pooling and Servicing Agreement and this Agreement.
B. Each of the Pooling and Servicing Agreement and this
Agreement has been duly authorized, executed and delivered by the
Company.
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C. Each of the Pooling and Servicing Agreement and this
Agreement, upon due authorization, execution and delivery by the
other parties thereto, will constitute 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 generally, (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
provisions which purport to provide indemnification from
securities law liabilities.
D. The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this
Agreement and the Certificate Purchase Agreement, will be
entitled to the benefits of the Pooling and Servicing Agreement.
E. The Registration Statement is effective under the
Securities Act of 1933, as amended (the "1933 Act") and, to such
counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or
threatened under Section 8(d) of the 1933 Act.
F. At the time it became effective, the Registration
Statement (other than any financial statements and supporting
schedules included therein, as to which such counsel renders no
opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the applicable rules and
regulations thereunder.
G. To such counsel's knowledge, there are no material
contracts, indentures or other documents of the Company required
to be described or referred to in the Registration Statement or
to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto.
H. The offer and sale of the Privately Offered
Certificates by the Company to the Purchasers in the manner
contemplated by the Certificate Purchase Agreement do not require
registration of the Privately Offered Certificates under the 1933
Act.
I. The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended.
Neither the Company nor the Trust Fund is required to be
registered under the Investment Company Act of 1940, as amended.
J. No consent, approval, authorization or order of any
State of New York or federal court or governmental agency or body
is required for the
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-12-
consummation by the Company of the transactions contemplated by
the Pooling and Servicing Agreement and this Agreement, except
(i) such as have been obtained under the 1933 Act, (ii) such as
may be required under the securities laws of any jurisdiction in
connection with the purchase and the offer and sale of the
Certificates by the Underwriters, as to which such counsel
express no opinion and (iii) any recordation of the assignments
of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement that has not yet been completed.
K. Neither the offer and sale of the Certificates nor the
consummation of any other of the transactions contemplated in or
the fulfillment of the terms of the Pooling and Servicing
Agreement and this 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 State of New York or federal statute or regulation
applicable to the Company or, to our knowledge, any order of any
State of New York or federal court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Company.
L. There are no actions, proceedings or investigations
pending before or, to such counsel's knowledge, threatened by any
court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the
subject (a) which, if determined adversely to the Company, would
have a material adverse effect on the business or financial
condition of the Company, (b) asserting the invalidity of the
Pooling and Servicing Agreement, this Agreement or the
Certificates, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Company of any of the
transactions contemplated by the Pooling and Servicing Agreement
and this Agreement or (d) which might materially and adversely
affect the performance by the Company of its obligations under,
or the validity or enforceability of the Pooling and Servicing
Agreement and this Agreement.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriters, acceptable to such Underwriter.
In giving their opinions required by subsection (b)(i) and
(b)(ii) of this Section, (A) counsel to the Underwriters shall
additionally state that nothing has come to such counsel's
attention that would lead it to believe that the Prospectus
(other than the financial statements and supporting schedules and
statistical information included therein, as to which no opinion
need be rendered), at the date of the Prospectus Supplement or at
the Closing Date, included or includes an untrue statement of a
material fact or omitted 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.
(B) counsel to the Company shall additionally state (i) that
nothing has come to such counsel's
<PAGE>
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attention that would lead it to believe that the Basic Prospectus
(other than the financial statements and supporting schedules and
statistical information included therein, as to which no opinion
need be rendered), as of its date, at the date of the Prospectus
Supplement or at the Closing Date, included or includes an untrue
statement of a material fact or omitted 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, (ii) that nothing has come to such counsel's
attention that would lead it to believe the Registration
Statement (other than any financial statements and supporting
schedules and statistical information included therein, as to
which no opinion need be rendered), at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) On the Closing Date, such Underwriter shall have received a
favorable opinion, dated the Closing Date, of tax and ERISA counsel to
the Underwriters with respect to the Certificates (i) regarding the
qualification of each of REMIC I, REMIC II and REMIC III as a real
estate mortgage investment conduit within the meaning of Sections 860A
through 860G of the Internal Revenue Code of 1986 and (ii) to the effect
that the statements in the Basic Prospectus and the Prospectus
Supplement under the headings "Certain Federal Income Tax Consequences"
and "ERISA Considerations", to the extent that they constitute matters
of State of New York or federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of
investment in the Certificates, are correct in all material respects
with respect to those consequences or matters that are discussed
therein.
(d) The Company shall have delivered to such Underwriter a
certificate, dated the Closing Date, of the President, a Senior Vice
President or a Vice President of the Company to the effect that the
signer of such certificate has examined, or has relied upon an
examination conducted by appropriate persons authorized by him, of this
Agreement, the Prospectus, the Pooling and Servicing Agreement and
various other closing documents, and that, to the best of his or her
knowledge after reasonable investigation:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects;
(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 hereunder at or prior to
the Closing Date; and
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the Commission.
(e) The Company and the Underwriters shall have received from
Deloitte, certified public accountants, a letter dated the Closing Date,
in form and substance satisfactory to such Underwriter, stating in
effect that:
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(i) they have performed certain specified procedures
as a result of which they have determined that the information of
an accounting, financial or statistical nature set forth in the
Prospectus Supplement under the captions "Summary of the
Prospectus Supplement," "Description of the Mortgage Pool" and
"Yield and Maturity Considerations" and on Annex A agrees with
the data sheet or computer tape prepared by or on behalf of the
Mortgage Loan Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data
sheet or computer tape referred to in the immediately preceding
clause (i) to information contained in an agreed upon sampling of
the Mortgage Loan files and in such other sources as shall be
specified by them, and found such data and information to be in
agreement, unless otherwise noted in such letter.
(f) On or before the Closing Date, such Underwriter shall have
received confirmation satisfactory to it that the Certificates have
received the ratings set forth in Schedule I.
(g) On or before the Closing Date, such Underwriter and counsel
to the Underwriters shall have been furnished with such other documents
and opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Certificates as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by
the Company in connection with the issuance and sale of the Certificates
as herein contemplated shall be satisfactory in form and substance to
such Underwriter and counsel to the Underwriters.
SECTION 7. Indemnification.
(a) The Company shall indemnify and hold each Underwriter and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any
and all losses, liabilities, claims and damages caused by any untrue statements
or omissions, or alleged untrue statements or omissions, in the information
concerning the Company included in the Registration Statement (or any amendment
thereto) or any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto). The parties agree that the only information concerning the
Company in the Registration Statement is on page 30 of the Basic Prospectus
under the caption "The Depositor" and on page S-6 of the Prospectus Supplement
under the caption "Summary of the Prospectus Supplement - Depositor."
(b) Each Underwriter shall indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all losses,
liabilities, claims and damages as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, (i) jointly
and severally if made in any Preliminary Prospectus or the Prospectus (or any
amendment or
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supplement thereto) and (ii) severally and not jointly if made in the
Computational Materials or ABS Term Sheets prepared or distributed by such
Underwriter and incorporated by reference in the Registration Statement or the
Prospectus as a result of any filing pursuant to Section 5(i).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In case
any action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party may
participate at its own expense in the defense of any such action and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an 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 shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under subsection (a) or (b) or insufficient in respect
of any losses, liabilities, claims or damages referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Certificates or
(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 the relative fault of
the Company on the one hand and of each of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Underwriters on the other 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
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a material fact relates to information supplied by the Company or by the
Underwriters, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims or damages referred to in this Section
7 shall be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim except where the indemnified party is required to
bear such expenses, which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that the
indemnifying party believes that it will be ultimately obligated to pay such
expenses. In the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying party
hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section
7 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company,
either Underwriter, any of their respective directors or officers, or any person
controlling the Company or an Underwriter, and (iii) acceptance of and payment
for any of the Certificates.
SECTION 8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of either Underwriter or any controlling
person in respect of such Underwriter, and shall survive delivery of the
Certificates to the Underwriters.
SECTION 9. Default by Either of the Underwriters.
If either of the Underwriters shall fail or refuse to purchase the
Certificates that it has agreed to purchase hereunder and arrangements
satisfactory to the non-defaulting Underwriter and the Company for the purchase
of such Certificates are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of the non-defaulting
Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either the non-defaulting Underwriter or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
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arrangements may be effected. Any action taken under this paragraph shall not
relieve the defaulting Underwriter from liability in respect of any such default
of such Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement shall also include, for all purposes of this Agreement, any party not
initially party to this Agreement who, with the approval of the non-defaulting
Underwriter and the Company, purchases the Certificates that the defaulting
Underwriter agreed, but failed or refused, to purchase.
SECTION 10. Termination of Agreement.
(a) Either Underwriter may terminate its obligations under this
Agreement, by notice to the Company and the other Underwriter, at any time at or
prior to the Closing Date if the sale of the Certificates provided for herein is
not consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement.
(b) This Agreement shall be subject to termination in the absolute
discretion of either Underwriter, by notice given to the Company, if (A) after
the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriters, is
material and adverse and (B) in the case of any of the events specified in
clauses (A)(i) through (iv) above, such event singly or together with any other
such event, makes it, in the judgment of the Underwriters, impracticable to
market the Certificates on the terms and in the manner contemplated in the
Prospectus.
(c) If the obligations of an Underwriter under this Agreement are
terminated pursuant to this Section and arrangements satisfactory to the
non-terminating Underwriter and the Company for the purchase of the Certificates
originally allocated to the non-terminating Underwriter as set forth on Schedule
I hereto are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any of the parties hereto.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if mailed or transmitted by any standard form of
communication. Notices to Merrill Lynch shall be directed to Merrill Lynch,
Pierce, Fenner & Smith Incorporated, World Financial Center, North Tower, New
York, New York 10281, Attention: Real Estate Investment Banking; notices to
First Union shall be directed to First Union Capital Markets Corp., One
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First Union Center TW-8, Charlotte, North Carolina 28288-0600, Attention: T.
Richard Kendrick; and notices to the Company shall be directed to Merrill Lynch
Mortgage Investors, Inc., World Financial Center, North Tower, New York, New
York 100281-1315, Attention: Secretary, with a copy to the treasurer; or, as to
any party, such other address as may hereafter be furnished by such party to the
others in writing.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their respective successors, heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their respective successors, heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Certificates
from an Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
SECTION 14. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
MERRILL LYNCH MORTGAGE
INVESTORS, INC.
By: /s/ Bruce L. Ackerman
--------------------------------------
Name: Bruce L. Ackerman
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Robert J. Fitzpatrick
------------------------------------
Name: Robert J. Fitzpatrick
Title: Vice President
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ John P. Evans, Jr.
------------------------------------
Name: John P. Evans, Jr.
Title: Senior Vice President
<PAGE>
<PAGE>
SCHEDULE I
Underwriting Agreement, dated as of April 1, 1996.
Cut-off Date: April 1, 1996
CERTIFICATES:
Merrill Lynch Mortgage Investors, Inc.
Mortgage Pass-Through Certificates, Series 1996-C1
<TABLE>
<CAPTION>
Initial Aggregate Initial Aggregate
Certificate Certificate
Initial Aggregate Principal Balances Principal Balances
Class Certificate to be Purchased to be Purchased Initial Purchase
Designation Principal Balances by Merrill Lynch by First Union Pass-Through Rate Price(1) Rating(2)
----------- ------------------- ---------------- -------------- ----------------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
A-1 $ 182,300,000 $ 91,150,000 $ 91,150,000 7.15% 100.968750% AAA
A-2 $ 27,813,000 $ 13,906,500 $ 13,906,500 7.24% 101.078125% AAA
A-3 $ 226,505,616 $ 113,252,808 $ 113,252,808 7.42% 100.968750% AAA
A-PO $ 254,384 $ 127,192 $ 127,192 N/A 40.562500% AAA
B $ 38,833,000 $ 19,416,500 $ 19,416,500 7.42% 100.156250% AA
C $ 38,833,000 $ 19,416,500 $ 19,416,500 7.42% 99.140625% A
D $ 32,361,000 $ 16,180,500 $ 16,180,500 7.42% 96.140625% BBB
- ------------------------
<FN>
(1) Expressed as a percentage of the initial aggregate Certificate Principal
Balance of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates will include accrued
interest at the initial Pass-Through Rate therefor on the aggregate
stated or notional amount, as applicable, thereof to be purchased from
the Cut-off Date to but not including the Closing Date.
(2) By each of Fitch Investors Service, L.P. and Standard & Poor's Ratings
Services.
</FN>
</TABLE>
<PAGE>
<PAGE>
EXHIBIT A-1
(a) For Structural Term Sheets:
Investors should read the Underwriter's Statement which accompanies this
Structural Term Sheet.
Prospective investors are advised to read carefully, and should rely
solely on, the final prospectus and prospectus supplement (the "Final
Prospectus") relating to the securities referred to herein in making their
investment decision. This Structural Term Sheet does not include all relevant
information relating to the Securities described herein (the "Securities"),
particularly with respect to the risks and special considerations associated
with an investment in the Securities. All structural information contained
herein is preliminary and it is anticipated that such information will change.
Any information contained herein will be more fully described in, and will be
fully superseded by, the descriptions of the collateral and structure in the
preliminary prospectus supplement and Final Prospectus. Although the information
contained in this Structural Term Sheet is based on sources which the
Underwriter believes to be reliable, the Underwriter makes no representation or
warranty that such information is accurate or complete. Such information should
not be viewed as projections, forecast, predictions or opinions with respect to
value. Prior to making any investment decision, a prospective investor shall
receive and fully review the Final Prospectus. NOTHING HEREIN SHOULD BE
CONSIDERED AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY SECURITIES.
(b) For Computational Materials:
Investors should read the Underwriter's Statement which accompanies
these Computational Materials. If the Statement is not attached please contact
your account representative. Do not use or rely on this information if you have
not received and reviewed the Statement.
These Computational Materials have been based upon the assumptions
described above. These assumptions will most likely not represent the actual
experience of the Mortgage Pool in the future. The Computational Materials are
intended to illustrate variations in yield on the [Offered Certificates] under
such assumptions. No representation is made herein as to the actual rate or
timing of principal payments or prepayments on any of the underlying Mortgage
Loans in the Mortgage Pool or the actual performance characteristics of the
[Offered Certificates].
<PAGE>
<PAGE>
EXHIBIT A-2
For Collateral Term Sheets:
Investors should read the Underwriter's Statement which accompanies this
Collateral Term Sheet.
Prospective investors are advised to carefully read, and should rely
solely on, the final prospectus and prospectus supplement (the "Final
Prospectus") relating to the securities referred to herein (the "Securities") in
making their investment decision. This Collateral Term Sheet does not include
all relevant information relating to the collateral described herein,
particularly with respect to the risks and special considerations associated
therewith. All collateral information contained herein is preliminary and such
information may change. Although the information contained in this Collateral
Term Sheet is based on sources which the Underwriter believes to be reliable,
the Underwriter makes no representation or warranty that such information is
accurate or complete. Such information should not be viewed as projections,
forecasts, predictions or opinions with respect to value. Prior to making any
investment decision, a prospective investor should receive and fully review the
Final Prospectus. NOTHING HEREIN SHOULD BE CONSIDERED AN OFFER TO SELL OR
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES.
This Collateral Term Sheet and the information contained herein will be
superseded by the description of the collateral contained in the Prospectus
Supplement [for any Collateral Term Sheet following the initial Collateral Term
Sheet; and supersedes all prior Collateral Term Sheets and the information
contained herein].
<PAGE>
<PAGE>
Execution Copy
================================================================================
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
GE CAPITAL ASSET MANAGEMENT CORPORATION
Master Servicer
and
GE CAPITAL REALTY GROUP, INC.
Special Servicer
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
--------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 1996
--------------------------------------
$647,219,459
Mortgage Pass-Through Certificates
Series 1996-C1
================================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms...................................................4
Accrued Certificate Interest............................................4
Accrued Component Interest..............................................4
Acquisition Date........................................................4
Additional Trust Fund Expense...........................................4
Advance.................................................................4
Adverse REMIC Event.....................................................5
Affiliate...............................................................5
Agreement...............................................................5
Appraisal Reduction Amount..............................................5
Appraisal Reduction Amount Shortfall....................................5
Appraised Value.........................................................5
Assignment of Leases....................................................5
Assumed Scheduled Payment...............................................5
Authenticating Agent....................................................6
Available Distribution Amount...........................................6
Balloon Mortgage Loan...................................................6
Balloon Payment.........................................................6
Bankruptcy Code.........................................................6
Breach..................................................................7
Book-Entry Certificate..................................................7
Business Day............................................................7
CERCLA..................................................................7
Certificate.............................................................7
Certificate Account.....................................................7
Certificate Factor......................................................7
Certificate Notional Amount.............................................7
Certificate Owner.......................................................7
Certificate Principal Balance...........................................7
Certificate Register....................................................8
Certificate Registrar...................................................8
Certificateholder.......................................................8
Class...................................................................8
Class A-1 Certificate...................................................8
Class A-2 Certificate...................................................8
Class A-3 Certificate...................................................8
Class A-PO Certificate..................................................8
Class A-PO Fraction.....................................................9
Class B Certificate.....................................................9
i
<PAGE>
<PAGE>
Class C Certificate.....................................................9
Class D Certificate.....................................................9
Class E Certificate.....................................................9
Class F Certificate.....................................................9
Class G Certificate.....................................................9
Class IO Certificate....................................................9
Class Prepayment Percentage.............................................9
Class Principal Balance.................................................9
Class R-I Certificate..................................................10
Class R-II Certificate.................................................10
Class R-III Certificate................................................10
Closing Date...........................................................10
Code...................................................................10
Collection Period......................................................10
Collection Report......................................................10
Component IO-1.........................................................10
Component IO-2.........................................................10
Component IO-3.........................................................11
Component..............................................................11
Component Notional Amount..............................................11
Controlling Class......................................................11
Corporate Trust Office.................................................11
Corrected Mortgage Loan................................................11
Custodian..............................................................11
Cut-off Date...........................................................11
Cut-off Date Balance...................................................11
Cut-off Date Discount Balance..........................................11
Debt Service Coverage Ratio............................................11
Defaulted Mortgage Loan................................................12
Definitive Certificate.................................................12
Depositor..............................................................12
Depository.............................................................12
Depository Participant.................................................12
Determination Date.....................................................12
Directly Operate.......................................................12
Discount Mortgage Loan.................................................13
Discount Mortgage Loan PO Strip........................................13
Disqualified Organization..............................................13
Distributable Certificate Interest.....................................13
Distribution Account...................................................13
Distribution Date......................................................14
Distribution Date Statement............................................14
Document Defect........................................................14
Due Date...............................................................14
Eligible Account.......................................................14
ii
<PAGE>
<PAGE>
ERISA..................................................................14
Escrow Payment.........................................................14
Event of Default.......................................................14
Exchange Act...........................................................14
Extension Adviser......................................................14
FDIC...................................................................15
FHLMC..................................................................15
Final Recovery Determination...........................................15
First Union............................................................15
Fitch..................................................................15
FNMA...................................................................15
Ground Lease...........................................................15
Hazardous Materials....................................................15
Holder.................................................................15
HUD-Approved Servicer..................................................15
Impound Reserve........................................................15
Independent............................................................16
Independent Appraiser..................................................16
Independent Contractor.................................................16
Insurance Policy.......................................................16
Insurance Proceeds.....................................................16
Interested Person......................................................17
Investment Account.....................................................17
Issue Price............................................................17
Late Collections.......................................................17
Liquidation Event......................................................17
Liquidation Proceeds...................................................17
Loan-to-Value Ratio....................................................18
Majority Subordinate Certificateholder.................................18
Master Servicer........................................................18
Master Servicer Strip..................................................18
Master Servicer Strip Rate.............................................18
Master Servicing Fee...................................................18
Master Servicing Fee Rate..............................................18
Merrill Lynch..........................................................18
Monthly Payment........................................................18
Mortgage...............................................................19
Mortgage File..........................................................19
Mortgage Loan..........................................................20
Mortgage Loan Purchase Agreements......................................20
Mortgage Loan Schedule.................................................20
Mortgage Loan Seller...................................................21
Mortgage Note..........................................................21
Mortgage Pool..........................................................21
Mortgage Rate..........................................................21
iii
<PAGE>
<PAGE>
Mortgaged Property.....................................................21
Mortgagor..............................................................21
Net Aggregate Prepayment Interest Shortfall............................21
Net Investment Earnings................................................21
Net Investment Loss....................................................22
Net Mortgage Rate......................................................22
Net Operating Income...................................................22
New Lease..............................................................22
Nonrecoverable Advance.................................................22
Nonrecoverable P&I Advance.............................................22
Nonrecoverable Servicing Advance.......................................22
Non-Registered Certificate.............................................22
Non-United States Person...............................................22
Officers' Certificate..................................................23
Opinion of Counsel.....................................................23
Original Component Notional Amount.....................................23
Original Class Principal Balance.......................................23
OTS....................................................................23
Ownership Interest.....................................................23
Pass-Through Rate......................................................23
Paying Agent...........................................................24
Penalty Interest.......................................................24
Percentage Interest....................................................24
Permitted Investments..................................................24
Permitted Transferee...................................................26
Person.................................................................26
Phase I Environmental Assessment.......................................26
P&I Advance............................................................26
P&I Advance Date.......................................................26
Plurality Residual Certificateholder...................................26
Prepayment Assumption..................................................26
Prepayment Interest Excess.............................................26
Prepayment Interest Shortfall..........................................26
Prepayment Premium.....................................................27
Prime Rate.............................................................27
Principal Distribution Amount..........................................27
Principal Prepayment...................................................28
Principal Recovery Fee.................................................28
Prospectus.............................................................28
Prospectus Supplement..................................................28
Purchase Price.........................................................28
Qualified Insurer......................................................29
Rating Agency..........................................................29
Realized Loss..........................................................29
Record Date............................................................29
iv
<PAGE>
<PAGE>
Registered Certificate.................................................29
Regular Certificate....................................................29
Reimbursement Rate.....................................................30
REMIC..................................................................30
REMIC I................................................................30
REMIC I Regular Interest...............................................30
REMIC I Regular PO Interests...........................................30
REMIC I Remittance Rate................................................30
REMIC II...............................................................30
REMIC II Regular Interest..............................................30
REMIC II Remittance Rate...............................................31
REMIC III..............................................................31
REMIC III Certificate..................................................31
REMIC Administrator....................................................31
REMIC Provisions.......................................................31
Rents from Real Property...............................................31
REO Account............................................................31
REO Acquisition........................................................31
REO Disposition........................................................31
REO Extension..........................................................31
REO Loan...............................................................31
REO Property...........................................................32
REO Revenues...........................................................32
REO Tax................................................................32
Request for Release....................................................32
Required Appraisal.....................................................32
Required Appraisal Mortgage Loan.......................................33
Required Appraisal Value...............................................33
Reserve Account........................................................33
Reserve Funds..........................................................33
Residual Certificate...................................................33
Responsible Officer....................................................33
Scheduled Payment......................................................33
Securities Act.........................................................33
Senior Certificate.....................................................33
Servicing Account......................................................33
Servicing Advances.....................................................34
Servicing Fees.........................................................34
Servicing File.........................................................34
Servicing Officer......................................................34
Servicing Standard.....................................................34
Servicing Transfer Event...............................................35
Single Certificate.....................................................35
Special Servicer.......................................................35
Special Servicing Fee..................................................35
v
<PAGE>
<PAGE>
Special Servicing Fee Rate.............................................35
Specially Serviced Mortgage Loan.......................................35
Standard & Poor's......................................................37
Startup Day............................................................37
Stated Maturity Date...................................................37
Stated Principal Balance...............................................37
Stripped Mortgage Loan.................................................38
Subordinated Certificate...............................................38
Sub-Servicer...........................................................38
Sub-Servicing Agreement................................................38
Tax Matters Person.....................................................38
Tax Returns............................................................38
Transaction Screen Process.............................................38
Transfer...............................................................38
Transferee.............................................................38
Transferor.............................................................39
Trust Fund.............................................................39
Trustee................................................................39
Trustee's Fee..........................................................39
Trustee Fee Rate.......................................................39
UCC....................................................................39
UCC Financing Statement................................................39
Uncertificated Accrued Interest........................................39
Uncertificated Distributable Interest..................................39
Uncertificated Principal Balance.......................................40
Underwriter............................................................40
United States Person...................................................40
Updated Mortgage Loan Schedule.........................................40
Voting Rights..........................................................40
Weighted Average Effective REMIC I Remittance Rate.....................41
Yield Maintenance Charge...............................................41
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans...................................42
SECTION 2.02. Acceptance of REMIC I by Trustee...............................43
SECTION 2.03. Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Breaches of Representations and
Warranties...................................................44
SECTION 2.04. Representations and Warranties of Depositor....................45
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests..........47
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee..........................................47
vi
<PAGE>
<PAGE>
SECTION 2.07 Execution, Authentication and Delivery of Class R-II
Certificates.................................................47
SECTION 2.08 Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.........................................48
SECTION 2.09 Execution, Authentication and Delivery of REMIC III
Certificates.................................................48
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans...........................48
SECTION 3.02. Collection of Mortgage Loan Payments...........................49
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts...................................50
SECTION 3.04. Certificate Account and Distribution Account...................52
SECTION 3.05. Permitted Withdrawals From the Certificate Account and the
Distribution Account.........................................55
SECTION 3.06. Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account.....................58
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage........................................60
SECTION 3.08. Enforcement of Alienation Clauses..............................62
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals...................................................62
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files..66
SECTION 3.11. Servicing Compensation.........................................67
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports..................................69
SECTION 3.13. Annual Statement as to Compliance..............................71
SECTION 3.14. Reports by Independent Public Accountants......................71
SECTION 3.15. Access to Certain Information..................................72
SECTION 3.16. Title to REO Property; REO Account.............................73
SECTION 3.17. Management of REO Property.....................................74
SECTION 3.18. Sale of Mortgage Loans and REO Properties......................77
SECTION 3.19. Additional Obligations of Master Servicer......................80
SECTION 3.20. Modifications, Waivers, Amendments and Consents................80
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.....................................83
SECTION 3.22. Sub-Servicing Agreements.......................................84
SECTION 3.23. Representations and Warranties of Master Servicer and Special
Servicer.....................................................86
SECTION 3.24. Duties of Extension Adviser....................................89
SECTION 3.25. Election of Extension Adviser..................................89
SECTION 3.26. Limitation on Liability of Extension Adviser...................91
vii
<PAGE>
<PAGE>
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................92
SECTION 4.02. Statements to Certificateholders; Collection Reports..........100
SECTION 4.03. P&I Advances..................................................107
SECTION 4.04. Allocation of Appraisal Reduction Amounts and Realized Losses
and Additional Trust Fund Expenses..........................109
SECTION 4.05. Calculations..................................................110
SECTION 4.06. Use of Agents.................................................111
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates..............................................112
SECTION 5.02. Registration of Transfer and Exchange of Certificates.........112
SECTION 5.03. Book-Entry Certificates.......................................118
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.............119
SECTION 5.05. Persons Deemed Owners.........................................119
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer..120
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer................................120
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer............................................121
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.......121
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer
and the Special Servicer....................................122
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee................................................123
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.............................................123
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer............................................123
SECTION 6.09. Designation of Special Servicer by the Controlling Class......123
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate.124
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default............................................126
SECTION 7.02. Trustee to Act; Appointment of Successor......................129
SECTION 7.03. Notification to Certificateholders............................130
SECTION 7.04. Waiver of Events of Default...................................130
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.........131
viii
<PAGE>
<PAGE>
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.............................................132
SECTION 8.02. Certain Matters Affecting Trustee.............................133
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................134
SECTION 8.04. Trustee May Own Certificates..................................134
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee......135
SECTION 8.06. Eligibility Requirements for Trustee..........................135
SECTION 8.07. Resignation and Removal of Trustee............................136
SECTION 8.08. Successor Trustee.............................................137
SECTION 8.09. Merger or Consolidation of Trustee............................137
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.................138
SECTION 8.11. Appointment of Custodians.....................................139
SECTION 8.12. Appointment of Authenticating Agents..........................139
SECTION 8.13. Appointment of Paying Agent...................................140
SECTION 8.14. Appointment of REMIC Administrators...........................141
SECTION 8.15. Access to Certain Information.................................142
SECTION 8.16. Representations and Warranties of Trustee.....................142
SECTION 8.17. Reports to the Securities and Exchange Commission; Available
Information.................................................143
ARTICLE IX TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.......................................................145
SECTION 9.02. Additional Termination Requirements...........................150
ARTICLE X ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.........................................152
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................157
SECTION 11.02. Recordation of Agreement; Counterparts.......................159
SECTION 11.03. Limitation on Rights of Certificateholders...................159
SECTION 11.04. Governing Law................................................160
SECTION 11.05. Notices......................................................160
SECTION 11.06. Severability of Provisions...................................160
SECTION 11.07. Grant of a Security Interest.................................161
SECTION 11.08. Streit Act...................................................161
SECTION 11.09. Successors and Assigns; Beneficiaries........................162
SECTION 11.10. Article and Section Headings.................................162
SECTION 11.10. Notices to Rating Agencies...................................162
SECTION 11.11. Complete Agreement...........................................163
ix
<PAGE>
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
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 A-3 Certificate A-3 Section 1.01 Definition of
"Class A-3 Certificate"
Form of Class A-PO Certificate A-4 Section 1.01 Definition of
"Class A-PO Certificate"
Form of Class B Certificate A-5 Section 1.01 Definition of
"Class B Certificate"
Form of Class C Certificate A-6 Section 1.01 Definition of
"Class C Certificate"
Form of Class D Certificate A-7 Section 1.01 Definition of
"Class D Certificate"
Form of Class E Certificate A-8 Section 1.01 Definition of
"Class E Certificate"
Form of Class F Certificate A-9 Section 1.01 Definition of
"Class F Certificate"
Form of Class G Certificate A-10 Section 1.01 Definition of
"Class G Certificate"
Form of Class IO Certificate A-11 Section 1.01 Definition of
"Class IO Certificate"
Form of Class R-I Certificate A-12 Section 1.01 Definition of
"Class R-I Certificate"
Form of Class R-II Certificate A-13 Section 1.01 Definition of
"Class R-II Certificate"
Form of Class R-III Certificate A-14 Section 1.01 Definition of
"Class R-III Certificate"
</TABLE>
x
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Mortgage Loan Schedule B Section 1.01 Definition of
"Mortgage Loan Schedule"
Form of Schedule of Exceptions C Section 2.02(a)
to Mortgage File Delivery
Form of Master Servicer Request for D-1 Section 1.01 Definition of
Release "Request for Release";
Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request D-2 Section 1.01 Definition of
for Release "Request for Release";
Section 3.10(b)
Calculation of NOI/Debt Service E-1 Section 1.01 Definition of
Coverage Ratios "Net Operating Income";
Section 3.12(b)
Form of Updated Mortgage Loan E-2 Section 3.12(c); and Section
Schedule 4.02(b)
Copy of Letter of Representations F Section 4.01(d)
among Depositor, Trustee and
initial Depository
Form of Certificate from Holder G-1 Section 5.02(b)
(Transferor) of a Certificate to
the Certificate Registrar
Form of Certificate from Proposed G-2 Section 5.02(b)
Transferee of a Certificate to
Certificate Registrar
Form of Certificate from Proposed G-3 Section 5.02(b)
Transferee of a Certificate to
Certificate Registrar for non-QIBs
Form of Certificate (to Certificate H Section 5.02(c)
Registrar) by Prospective
Transferor that it is not a Plan or
certain other Persons
</TABLE>
xi
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Transfer Affidavit and I-1 Section 5.02(d)(i)(B)
Agreement regarding Class R-I
Certificates
Form of Transferor Certificate I-2 Section 5.02(d)(i)(D)
regarding Class R-I, R-II and R-III
Certificates
Form of Notice and Acknowledgment J-1 Section 6.09
Form of Acknowledgment of Proposed J-2 Section 6.09
Special Servicer
Form of UCC-1 financing statement K Section 11.07
Form of Schedule of Holders of L Section 4.02(a)
each Class of Regular Certificates
</TABLE>
xii
<PAGE>
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is
dated and effective as of April 1, 1996, among MERRILL LYNCH MORTGAGE INVESTORS,
INC., as Depositor, GE CAPITAL ASSET MANAGEMENT CORPORATION, as Master Servicer,
GE CAPITAL REALTY GROUP, INC., as Special Servicer, and BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., 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 the Mortgage Loans (as defined
herein) and certain other related assets subject to this Agreement as a real
estate mortgage investment conduit (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 (as defined herein) under the federal
income tax law. Except as provided below, each of the "regular interests" in
REMIC I (each, a "REMIC I Regular Interest") will relate to a specific Mortgage
Loan. Each such REMIC I Regular Interest will have a remittance rate equal to
the Net Mortgage Rate (as defined herein) of the Mortgage Loan to which such
REMIC I Regular Interest relates, an initial uncertificated stated principal
amount equal to the Cut-off Date Balance (as defined herein) of the Mortgage
Loan to which such REMIC I Regular Interest relates and a latest possible
maturity date set to the Stated Maturity Date of the Mortgage Loan to which such
REMIC I Regular Interest relates. However, with respect to each REMIC I Regular
Interest that relates to a Discount Mortgage Loan (as defined herein), two
uncertificated REMIC I Regular Interests will be issued by REMIC I: (i) a REMIC
I Regular PO Interest (as defined herein), which will not have a remittance rate
but will have an initial stated principal amount (the initial "Uncertificated
Principal Balance") equal to the Discount Mortgage Loan PO Strip (as defined
herein) and a latest possible maturity date set to the Stated Maturity Date of
the Discount Mortgage Loan having the latest Stated Maturity Date, and (ii) a
regular interest which will have a remittance rate equal to 7.42% and an initial
uncertificated principal balance equal to the Cut-off Date Discount Balance (as
defined herein) and a latest possible maturity date set to the Stated Maturity
Date of the Discount Mortgage Loan having the latest Stated Maturity Date.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting 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
(as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, remittance rate (the "REMIC II
Remittance Rate"), the initial Uncertificated Principal Balance and latest
possible maturity date for each of the "regular
<PAGE>
<PAGE>
-2-
interests" in REMIC II (the "REMIC II Regular Interests"). None of the REMIC II
Regular Interests will be certificated.
<TABLE>
<CAPTION>
Corresponding
REMIC III REMIC II Initial Uncertificated Rated Final
Designation Certificate Remittance Rate Principal Balance Distribution Date (2)
----------- ----------- --------------- ----------------- ---------------------
<S> <C> <C> <C> <C>
S Class A-1 Variable(1) $182,300,000 April 25, 2028(3)
T Class A-2 Variable(1) $27,813,000 April 25, 2028(3)
U Class A-3 Variable(1) $226,505,616 April 25, 2028(3)
V Class B Variable(1) $38,833,000 April 25, 2028(3)
W Class C Variable(1) $38,833,000 April 25, 2028(3)
X Class D Variable(1) $32,361,000 April 25, 2028(3)
Y Classes E,F&G Variable(1) $100,319,459 April 25, 2028(3)
Z Class A-PO 0% $254,384(4) April 25, 2028(3)
</TABLE>
- ---------------------------
(1) Calculated in accordance with the definition of "REMIC II Remittance Rate".
(2) Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
(3) Set to the date that is two years after the first Distribution Date that
follows the end of the amortization term for the Mortgage Loan that, as of
the Cut-off Date, has the longest amortization term scheduled maturity
date.
(4) Equal to the sum of the REMIC I Regular PO Interests.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests 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. The following table irrevocably sets forth the
designation, pass-through rate (the "Pass-Through Rate"), initial aggregate
stated principal amount (the initial "Class Principal Balance") and latest
possible maturity date for each of the Regular Certificates.
<PAGE>
<PAGE>
-3-
<TABLE>
<CAPTION>
Class Initial Class Rated Final
Designation Pass-Through Rate(1) Principal Balance Distribution Date (3)
----------- ------------------- ----------------- ---------------------
<S> <C> <C> <C>
Class A-1 7.15% $182,300,000 April 25, 2028(4)
Class A-2 7.24% $27,813,000 April 25, 2028(4)
Class A-3 7.42% $226,505,616 April 25, 2028(4)
Class A-PO (5) $254,384 April 25, 2028(4)
Class B 7.42% $38,833,000 April 25, 2028(4)
Class C 7.42% $38,833,000 April 25, 2028(4)
Class D 7.42% $32,361,000 April 25, 2028(4)
Class IO (2) (2) April 25, 2028(4)
Class E 7.42% $48,541,000 April 25, 2028(4)
Class F 7.42% $32,361,000 April 25, 2028(4)
Class G 7.42% $19,417,459 April 25, 2028(4)
</TABLE>
- ---------------------------
(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) The Class IO Certificates will not have specified Class Principal Balances,
and will be entitled to receive interest in an amount equal to the sum of
the interest accrued on its three Components.
(3) Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
(4) Set to the date that is five years after the first Distribution Date that
follows the scheduled maturity date for the Mortgage Loan with the longest
remaining term to scheduled maturity.
(5) The Class A-PO Certificates are not entitled to distributions of interest.
The aggregate Cut-off Date Balance (as defined herein) of the
Mortgage Loans, the aggregate Uncertificated Principal Balance of the REMIC I
Regular Interests, the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests and the aggregate Class Principal Balance of the respective
Classes of Certificates evidencing "regular interests" in REMIC III will in each
case be $647,219,459.
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 and Class A-PO 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 (as adjusted by any Appraisal Reduction Amount)
outstanding immediately prior to such Distribution Date. 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
for any Distribution Date, the sum of one month's interest at the Pass-Through
Rate applicable to such Component for such Distribution Date, accrued on the
Component Notional Amount (as adjusted by any Appraisal Reduction 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 regulation 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 Trust Fund Expense": Any Special Servicing Fees,
Principal Recovery Fees and, in accordance with Sections 3.03(d) and 4.03(d),
interest on Advances payable to the Master Servicer and the Special Servicer, as
well as any of the expenses of the Trust Fund that may be withdrawn (x) pursuant
to any of clauses (viii), (ix), (xi), (xii) and (xiii) of Section 3.05(a) out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account or (y) 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
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.
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"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.
"Appraisal Reduction Amount": The excess, if any, of (a) the
sum of, as of the Determination Date immediately succeeding the date on which a
Required Appraisal is obtained, (i) the Stated Principal Balance of the subject
Required Appraisal Mortgage Loan, (ii) to the extent not previously advanced by
or on behalf of the Master Servicer or the Trustee, all unpaid interest on the
Required Appraisal Mortgage Loan through the most recent Due Date prior to such
Determination Date at a per annum rate equal to the related Net Mortgage Rate,
(iii) all accrued but unpaid Master Servicing Fees and Additional Trust Fund
Expenses in respect of such Required Appraisal Mortgage Loan, (iv) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the Special
Servicer or the Trustee with respect to such Required Appraisal Mortgage Loan
and (v) all currently due and unpaid real estate taxes and assessments,
insurance premiums, and, if applicable, ground rents in respect of the related
Mortgaged Property over (b) the Required Appraisal Value.
"Appraisal Reduction Amount Shortfall": The product of an
Appraisal Reduction Amount and the Pass-Through Rate applicable to the Class of
Certificates to which such Appraisal Reduction Amount has been allocated (or the
Pass-Through Rate for the IO-1 Component with respect to the Class IO
Certificates).
"Appraised Value": With respect to each Mortgaged Property,
the appraised value thereof based upon the most recent appraisal that is
contained in the related Servicing File.
"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 for its Stated 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
<PAGE>
<PAGE>
-6-
pay in accordance with the amortization schedule, in effect prior to its Stated
Maturity Date, and without regard to the occurrence of its Stated 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.
"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, (ii) the aggregate amount of any P&I Advances made by the Master Servicer
for distribution on the Certificates on such Distribution Date pursuant to
Section 4.03, (iii) if and to the extent not included in the amount referred to
in subclause (a)(i), 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), and (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, 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 the (a) Certificate Account
pursuant to clauses (ii)-(xv) of Section 3.05(a) or (b) the Distribution Account
pursuant to clauses (iii) and (viii) of Section 3.05(b), (iii) any amounts
payable or reimbursable to the Trustee from the Distribution Account pursuant to
clauses (ii) and clauses (iv) through (vi) of Section 3.05(b), (iv) Prepayment
Premiums and Yield Maintenance Charges, and (v) any amounts deposited in the
Certificate Account or the Distribution Account in error.
"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).
<PAGE>
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"Breach": As defined in Section 2.03(a).
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York or the city in which the
Corporate Trust Office of the Trustee is 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.
"Certificate": Any one of the Depositor's Mortgage
Pass-Through Certificates, Series 1996-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
"GE Capital Asset Management Corporation, as Master Servicer for Bankers Trust
Company of California, N.A., as Trustee, on behalf of and in trust for the
registered holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1".
"Certificate Factor": With respect to any Class of Regular
Certificates (other than the Class IO Certificates), as of any date of
determination, a fraction, expressed as a decimal carried to six places, the
numerator of which is the then related Class Principal Balance, as the case may
be, and the denominator of which is the related Original Class Principal
Balance.
"Certificate Notional Amount": With respect to any Class IO
Certificate, as of any date of determination, the then outstanding notional
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the aggregate Component
Notional Amount of 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 Regular
Certificate (other than a Class IO 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
<PAGE>
<PAGE>
-8-
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, either Mortgage Loan Seller, the Master Servicer, the Special
Servicer or the Trustee in its respective capacity as such (except with respect
to Sections 3.20(d) and 11.01 hereof and any consent approval or waiver relating
to the Majority Subordinate Certificate holder), any Certificate registered in
the name of the Depositor, either 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. 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 "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 "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-PO Certificate": Any one of the Certificates with a
"Class A-PO" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
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"Class A-PO Fraction": With respect to each Discount Mortgage
Loan a fraction, the numerator of which is 7.42% minus the Net Mortgage Rate
thereof and the denominator of which is 7.42%.
"Class B Certificate": Any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing 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-6 attached hereto, and evidencing 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-7 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-8 attached hereto, and evidencing 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-9 attached hereto, and evidencing 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-10 attached hereto, and evidencing 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-11 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class Prepayment Percentage": With respect to any
Distribution Date and the Class A-1, Class A-2, Class A-3, Class A-PO, Class B,
Class C, Class D, Class E, Class F and Class G Certificates, the percentage
obtained by dividing the portion, if any, of the Principal Distribution Amount
distributed to the respective Class of Certificates on such Distribution Date,
by the total Principal Distribution Amount distributed to all Classes of
Certificates on such Distribution Date.
"Class Principal Balance": The aggregate principal amount of
any Class of Regular Certificates (other than the Class IO Certificates)
outstanding as of any date of determination. As of the Closing Date, the Class
Principal Balance of each such Class of 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 reduced by the
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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).
"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-12 attached hereto, and evidencing the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"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-13 attached hereto, and evidencing 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-14 attached hereto, and evidencing the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Closing Date": April 3, 1996.
"Code": The Internal Revenue Code of 1986.
"Collection Period": With respect to any Distribution Date,
the period commencing 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.
"Collection Report": The monthly report to be prepared by the
Master Servicer and Special Servicer, and delivered to the Paying Agent and the
Depositor pursuant to Section 4.02(b).
"Component IO-1": One of three components of the Class IO
Certificates having a Component Notional Amount equal to the aggregate initial
Uncertificated Principal Balance of the REMIC II Regular Interests, outstanding
from time to time and reduced on each Distribution Date by any Appraisal
Reduction Amount allocated to any Class of Certificates.
"Component IO-2": One of three components of the Class IO
Certificates having a Component Notional Amount equal to the Certificate
Principal Balance of the Class A-1 Certificates, outstanding from time to time.
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"Component IO-3": One of three components of the Class IO
Certificates having a Component Notional Amount equal to the Certificate
Principal Balance of the Class A-2 Certificates, outstanding from time to time.
"Component": Each of Component IO-1, Component IO-2 and
Component IO-3, and collectively, the "Components".
"Component Notional Amount": The notional principal amount on
which any of Component IO-1, Component IO-2 or Component IO-3 accrues interest.
"Controlling Class": As of any date of determination, the
Class of Certificates outstanding, other than the Residual Certificates or the
Class IO Certificates, (a) which bear 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 Certificates (other
than the Residual Certificates or the Class IO Certificates) bearing the latest
alphabetical designation. With respect to determining the Controlling Class, the
Class A-1, Class A-2, Class A-3 and Class A-PO Certificates shall be deemed a
single Class of Certificates.
"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 shall be administered, which office at the date of the
execution of this Agreement is located at 3 Park Plaza, 16th Floor, Irvine,
California 92714.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
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 or an Affiliate of the Depositor.
"Cut-off Date": April 1, 1996.
"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.
"Cut-off Date Discount Balance": With respect to any Discount
Mortgage Loan, the Cut-Off Date Balance minus the Discount Mortgage Loan PO
Strip.
"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
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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 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.
"Definitive Certificate": As defined in Section 5.03(a).
"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 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 Securities Exchange Act of
1934, as amended.
"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 12th day of the month in which such Distribution Date occurs, or if such
12th day is not a Business Day, the Business Day immediately preceding.
"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 Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes rental terms,
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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.
"Discount Mortgage Loan": Each Mortgage Loan having a Net
Mortgage Rate less than 7.42%.
"Discount Mortgage Loan PO Strip": With respect to each
Discount Mortgage Loan, an amount equal to the Cut-off Date Balance thereof
multiplied by an amount equal to the Class A-PO Fraction related thereto.
"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 an Ownership Interest in 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 (other than the Class A-PO 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
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 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.
"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 "Bankers Trust Company of California,
N.A., as Trustee, in trust for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1996-C1."
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"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the Business Day immediately following,
commencing in May, 1996.
"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, and with
respect to deposits held for 365 days or more in such account the (a) long-term
deposit or unsecured debt obligations of (or of such institution's parent
holding company) which are rated "AA" by Fitch (if then rated by Fitch) and
Standard & Poor's at any time such funds are on deposit therein, or with respect
to deposits held for less than 365 days in such account the (b) short-term
deposits of which (or of such institution's parent holding company) are rated
F-1+ or A-1+ by Fitch (if then rated by Fitch) and Standard & Poor's 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 CFR ss.
9.10(b), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal 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).
"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, ground rents
(if applicable) and other items for which an escrow or reserve has been created
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Extension Adviser": As defined in Section 3.24(a).
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"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 the
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
by the Majority Subordinate Certificateholder pursuant to Section 3.18(b), by
the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by
the Depositor or the Master Servicer pursuant to Section 9.01) that there has
been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
"First Union": First Union Capital Markets Corp. or its
successor in interest.
"Fitch": Fitch Investors Service, L.P. or its successor in
interest. If neither such rating organization nor any successor remains in
existence, "Fitch" shall be deemed to refer to such other nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer and the Special Servicer, and specific ratings of Fitch herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"FNMA": Federal National Mortgage Association.
"Ground Lease": As defined in Section 2.01(e)(xix) hereof.
"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, urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification which would, if
classified as unusable, be included in the foregoing definition.
"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.
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"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer 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 Depositor, the Master
Servicer, the Special Servicer or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Master Servicer, the Special Servicer 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 Depositor, the Master
Servicer, the Special Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, the Master Servicer, the Special Servicer 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,
and, if the State in which the subject Mortgaged Property is located certifies
or licenses appraisers, certified or licensed in such State, and in each such
case, 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 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 regulation 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 Proceeds": Proceeds paid under any Insurance
Policy, 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.
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"Interested Person": The Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, 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 Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance 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 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 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 Mortgage Loan or of an
Assumed Scheduled Payment in respect of such REO Loan due or deemed due 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 a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement; or (iv) such Mortgage Loan is purchased by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor 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 or the Master Servicer pursuant
to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
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 Majority Subordinate Certificateholder pursuant to Section 3.18(b)
or by the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or
any other sale thereof pursuant to Section 3.18(d); (v) the repurchase of a
Mortgage Loan by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase
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Agreement; or (vi) the purchase of a Mortgage Loan or REO Property by the
Depositor or the Master Servicer pursuant to Section 9.01.
"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.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates entitled to greater than 50% of
the Voting Rights allocated to the Class of outstanding Regular Certificates
(other than the Class IO Certificates) with the latest alphabetical Class
designation. With respect to determining the Majority Subordinate
Certificateholder, the Class A-1, Class A-2, Class A-3 and Class A-PO
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.
"Master Servicer": GE Capital Asset Management Corporation,
its successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicer Strip": The right of GE Capital Asset
Management Corporation or its assigns to receive, on each Distribution Date,
monthly interest at the Master Servicer Strip Rate from collections on the
Stripped Mortgage Loan, which right shall not be part of REMIC I, REMIC II or
REMIC III. The Master Servicer Strip shall be calculated on the basis of a
360-day year consisting of twelve 30-day months and shall be distributed
pursuant to Section 3.05(a)(xv).
"Master Servicer Strip Rate": With respect to any Distribution
Date, .2350% per annum with respect to the Stripped Mortgage Loan.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage
Loan, the annual rate set forth therefor in 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).
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"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 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 Bankers Trust
Company of California, N.A., as trustee for the
registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-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 (with recording information indicated
thereon), if such item is a document separate from
the Mortgage;
(iv) an original executed assignment of the Mortgage,
any related Assignment of Leases (if such item is
a document separate from the Mortgage), and any
other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in
favor of Bankers Trust Company of California,
N.A., as trustee for the registered holders of
Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1, in
recordable form;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan, in favor of Bankers
Trust Company of California, N.A., as trustee for
the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-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 on
the date of 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) 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
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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 Bankers Trust Company
of California, N.A., as trustee for the registered
holders of Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series
1996-C1;
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 the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans listed on the
Mortgage Loan Schedule and 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 April 1, 1996, 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;
(vi) the (A) remaining term to stated maturity and (B)
the Stated Maturity Date;
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(vii) in the case of a Balloon Mortgage Loan, the
remaining amortization term;
(viii) whether the Mortgage Loan is secured by a Ground
Lease;
(ix) the Master Servicing Fee Rate and Master Servicer
Strip Rate, if any; and
(x) the related Mortgage Loan Seller.
"Mortgage Loan Seller": Each of Merrill Lynch Mortgage Capital
Inc. or its successor in interest and First Union National Bank of North
Carolina 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 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.
"Net Investment Earnings": With respect to the Certificate
Account, the Distribution Account or the REO Account (if any) for any Collection
Period, the amount, if any,
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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, 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, the Distribution Account or the REO Account (if any) for any Collection
Period, the amount by which the aggregate of all losses, 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 the Trustee Fee Rate, the related Master
Servicing Fee Rate and the Master Servicer Strip 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.
"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.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made
or proposed to be made in respect of any Mortgage Loan or any REO Loan that, as
determined by the Master Servicer in accordance with the Servicing Standard,
will not be ultimately recoverable from late payments, Insurance Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of such Mortgage
Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property that, as determined by the Master Servicer or the Special Servicer in
accordance with the Servicing Standard, will not be ultimately recoverable from
late payments, Insurance Proceeds, Liquidation Proceeds, or any other recovery
on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class E, Class F, Class G, Class IO, Class R-I,
Class R-II or Class R-III Certificate.
"Non-United States Person": Any person other than a United
States Person.
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"Officers' Certificate": A certificate signed by two Servicing
Officers of the Master Servicer or the Special Servicer, as the case may be.
"Opinion of Counsel": A written opinion of counsel (which
counsel shall be Independent of the Depositor, the Master Servicer and the
Special Servicer) 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 $647,219,459, with respect to Component IO-1, $182,300,000, with
respect to Component IO-2, and $27,813,000, with respect to Component IO-3.
"Original Class Notional Amount": With respect to the Class IO
Certificates, $857,342,459
"Original Class Principal Balance": With respect to any Class
of Regular Certificates (other than the Class IO Certificates), the initial
Class Principal Balance thereof as of the Closing Date, in each case as
specified in the Preliminary Statement.
"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.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution
Date, 7.15%;
(ii) the Class A-2 Certificates for any Distribution
Date, 7.24%;
(iii) the Class A-3 Certificates for any Distribution
Date, 7.42%;
(iv) the Class B Certificates for any Distribution
Date, 7.42%;
(v) the Class C Certificates for any Distribution
Date, 7.42%;
(vi) the Class D Certificates for any Distribution
Date, 7.42%;
(vii) the Class E Certificates for any Distribution
Date, 7.42%;
(viii) the Class F Certificates for any Distribution
Date, 7.42%;
(ix) the Class G Certificates for any Distribution
Date, 7.42%;
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(x) Component IO-1 for any Distribution Date, the
REMIC II Remittance Rate for such Distribution
Date minus 7.42%;
(xi) Component IO-2 for any Distribution Date, .27%;
and
(xii) Component IO-3 for any Distribution Date, .18%.
"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 Interest": With respect to any Mortgage Loan (or
successor REO Loan), any amounts collected thereon, other than late payment
charges, or Prepayment Premiums or Yield Maintenance Charges, that represent
penalty interest in excess of interest on the principal balance of such Mortgage
Loan (or successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional 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 or Original Class Notional Balance of the
relevant Class. 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.
"Permitted Investments": Any one or more of the following
obligations or securities:
(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 by 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 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 rating
category of each of Fitch, if rated by Fitch, and
Standard & Poor's or such lower rating as will not
result in qualification, downgrading or withdrawal
of the ratings
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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
very or change. Interest may either by 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 relied upon for a fixed
yield;
(iii) 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 Fitch, if
rated by Fitch, 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
very or change. Interest may either by 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 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 (or if not so incorporated,
the commercial paper is United States Dollar
denominated and amounts payable thereunder are not
subject to any withholding imposed by any
non-United States jurisdiction) which is rated in
the highest rating category of each of Fitch, if
rated by Fitch, and Standard & Poor's. 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 very or change. Interest
may either by 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 relied upon for a fixed yield;
(v) units of money market funds rated in the highest
rating category of both Fitch, if rated by Fitch,
and AAAm or AAAm-G by Standard & Poor's and which
maintain a constant net asset value;
(vi) any other obligation or security acceptable to
each Rating Agency, evidence of which
acceptability shall be provided in writing by each
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Rating Agency to the Master Servicer, the Special
Servicer and the Trustee;
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.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the FNMA Multifamily
Guide, as amended from time to time.
"P&I Advance": As to any Mortgage Loan or REO Loan, any
advance made by the Master Servicer pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The first Business Day preceding each
Distribution Date.
"Plurality Residual Certificateholder": As to any taxable year
of REMIC I, REMIC II or REMIC III, the Holder of Certificates entitled to the
largest percentage of the Voting Rights allocated to 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).
"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 Trustee Fee, related Servicing Fees and Prepayment Premiums
or Yield Maintenance Charges) accrued on the amount of such Principal Prepayment
during the period from and after such Due Date, to the extent 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, to the extent not collected from the related Mortgagor, net of any
Prepayment Premiums or Yield Maintenance Charges, that would have accrued at a
rate per annum equal to the Net Mortgage Rate for such Mortgage Loan on the
amount of such
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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 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.
"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 Trustee and the Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the following:
(a) the aggregate of the principal portions of all
Scheduled Payments (other than Balloon Payments) 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 all Principal Prepayments
received on the Mortgage Loans during the related Collection
Period;
(c) 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, 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;
(d) the aggregate of all Liquidation Proceeds and
Insurance Proceeds that were received on the Mortgage Loans
during the related Collection Period and that were identified
and applied by the Master Servicer and/or Special 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
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on a Due Date during or prior to the related Collection
Period and not previously recovered;
(e) 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;
(f) with respect to any REO Properties, the aggregate
of all Liquidation Proceeds, Insurance 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 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;
(g) if such Distribution Date is subsequent to the
initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution
Date, over the aggregate distributions of principal made on
the Certificates on such preceding Distribution Date pursuant
to Section 4.01; and
(h) any amounts not otherwise distributed as interest
on any Class of Certificates in respect of an Appraisal
Reduction Amount.
"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.
"Principal Recovery Fee": With respect to each Specially
Serviced Mortgage Loan, Corrected Mortgage Loan and REO Loan, the fee payable to
the Special Servicer out of certain related principal recoveries pursuant to the
second paragraph of Section 3.11(c).
"Prospectus": The prospectus dated March 7, 1996, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The prospectus supplement dated April
1, 1996 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 Majority Subordinate Certificateholder pursuant to
Section 3.18(b), by the Master Servicer or the Special Servicer pursuant to
Section 3.18(c) or by the Depositor or the Master Servicer pursuant to Section
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9.01 or to be otherwise sold pursuant to Section 3.18(d), 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, and (b)
all related and unreimbursed Servicing Advances plus any accrued interest
thereon; provided that the Purchase Price shall not be reduced by any
outstanding P&I Advance.
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of Fitch and Standard & Poor's.
"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 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 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 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 A-3,
Class A-PO, Class B, Class C or Class D Certificate.
"Regular Certificate": Any REMIC III Certificate other than a
Class R-III Certificate.
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"Reimbursement Rate": The rate per annum 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 per annum is
equal to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
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
after the Closing Date (excluding the Master Servicer Strip), together with all
documents included in the related Mortgage Files and any Escrow Payments and
Reserve Funds; (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 and, if established, the REO Account; and (iv)
the rights of the Depositor under Section 3 of 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 and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Regular PO Interests": The separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as
"regular interests" in REMIC I, which shall correspond to each Discount Mortgage
Loan PO Strip and shall not bear interest.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest (other than a REMIC I Regular PO Interest) for any Distribution Date,
the Net Mortgage Rate in effect for the related Mortgage Loan (or any successor
REO Loan), other than a Discount Mortgage Loan, to which such REMIC I Regular
Interest relates as of the commencement of the Collection Period for such
Distribution Date. The REMIC I Remittance Rate with respect to any REMIC I
Regular Interest relating to a Discount Mortgage Loan shall be 7.42% and with
respect to a REMIC I Regular PO Interest shall be 0%.
"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 eight 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 (other than REMIC II Regular Interest Z) at the related
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
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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 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.
"REMIC III Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-PO, Class B, Class C, Class D, Class E, Class F, Class G, Class IO 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 custodial 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 "[name of Special Servicer], as Special Servicer, in trust for
registered holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1".
"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
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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 Master Servicer or the Special Servicer
for the payment of, the costs of operating, managing and maintaining the related
REO Property) 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 or the Special Servicer in respect of the predecessor Mortgage Loan as
of the date of the related REO Acquisition, including, without limitation, any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer or the
Special Servicer 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 or the Special Servicer, as the case may be,
in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired on behalf and in
the name of the Trustee 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).
"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.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an Independent appraisal of the related Mortgaged Property from
an Independent Appraiser.
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"Required Appraisal Mortgage Loan": Each Mortgage Loan that
(i) is ninety (90) days or more delinquent in respect of any Monthly Payments,
(ii) becomes an REO Loan or (iii) has been modified by the Special Servicer to
reduce the amount of any Monthly Payment.
"Required Appraisal Value": An amount equal to 90% of the
appraised value (net of any prior liens) of the Mortgaged Property related to
the subject Required Appraisal Mortgage Loan as determined by a Required
Appraisal or any letter update of such Required Appraisal; and provided further
that for purposes of determining any Appraisal Reduction Amount in respect of
such Required Appraisal Mortgage Loan, such Appraisal Reduction Amount shall be
amended annually to reflect the Required Appraisal Value determined pursuant to
any Required Appraisal or letter update of a Required Appraisal conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"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 or assistant officer in the Corporate Trust Department of the
Trustee, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject.
"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 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 Closing
Date, but without regard to 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, 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 A-3
Certificate.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
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"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred by the Master Servicer or Special
Servicer in connection with the servicing of a Mortgage Loan after a default,
delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and the Special
Servicer set forth in Section 3.03(c), (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "forced placed" insurance policy purchased by the Master Servicer to
the extent such cost is allocable to a particular Mortgaged Property that the
Master Servicer is required to cause to be insured pursuant to Section 3.07(a),
(c) obtaining any Insurance Proceeds or any Liquidation Proceeds of the nature
described in clauses (i)-(v) of the definition of "Liquidation Proceeds," (d)
any enforcement or judicial proceedings with respect to a Mortgaged Property,
including, without limitation, foreclosures, (e) any Required Appraisal or other
appraisal and (f) the operation, management, maintenance and liquidation of any
REO Property, including appraisals. Notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, which shall include costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses.
"Servicing Fees": With respect to each Mortgage Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required
to be part of the related Mortgage File) in the possession of the Depositor 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": To service and administer the Mortgage
Loans with (A) (i) the same care, skill and diligence with which prudent
institutional commercial mortgage lenders and loan servicers service comparable
mortgage loans or (ii) in the same manner in which the Master Servicer or
Special Servicer, as the case may be, administers mortgage loans for its own
account, whichever is higher, and (B) (i) with a view to the timely collection
of all scheduled payments of principal and interest under the Mortgage Loans or,
(ii) if a Mortgage Loan comes into and continues in default and no satisfactory
arrangements can be made for the collection of the delinquent payments, the
maximization of the recovery on such Mortgage Loan to Certificateholders on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related
Mortgage Rate), notwithstanding any conflict of interest which may arise with
respect
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to: (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;
(ii) the ownership of any Certificate by the Master Servicer or the Special
Servicer, as the case may be, or by any Affiliate thereof; (iii) the Master
Servicer's obligation to make Advances; (iv) the Special Servicer's obligation
to make Servicing Advances; and (v) the adequacy of the Master Servicer's, the
Special Servicer's or their Affiliates' compensation for their services or
reimbursement of costs hereunder or with respect to any particular transaction.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates evidencing a
$1,000 denomination or, in the case of a Class IO Certificate, a 100% Percentage
Interest in the relevant Class.
"Special Servicer": GE Capital Realty Group, Inc., 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 each REO Loan, the fee designated as such and 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.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which any of the following events have occurred:
(a) the related Mortgagor shall have failed to make any
Monthly Payment, which failure continues unremedied
for 60 days (or, in the case of a Balloon Payment, if
the Master Servicer receives written evidence from an
institutional lender of such lender's commitment to
refinance such Mortgage Loan and the related
Mortgagor continues to make monthly payments of
principal and interest in an amount at least equal to
the Monthly Payment due on the Due Date immediately
preceding the scheduled maturity date, such longer
period (not to exceed 120 days) within which such
refinancing will occur); or
(b) the Master Servicer shall have determined, in its
good faith reasonable judgment, based on
communications with the related Mortgagor, that a
default in making a Monthly Payment is likely to
occur within 30 days and is likely to remain
unremedied for at least 60 days (or, in the case of a
Balloon Payment, if the Master Servicer has received
written evidence from an institutional lender of such
lender's commitment to refinance
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such Mortgage Loan and if the Master Servicer
reasonably expects the related Mortgagor to continue
to make monthly payments of principal and interest in
an amount at least equal to the Monthly Payment due
on the Due Date immediately preceding the scheduled
maturity date, such longer period (not to exceed 120
days) within which such refinancing will occur); or
(c) there shall have occurred a default (other than as
described in clause (a) above) that materially
impairs the value of the Mortgaged Property as
security for the Mortgage Loan or otherwise
materially adversely affects the interests of
Certificateholders and that continues unremedied for
the applicable grace period under the terms of the
Mortgage Loan (or, if no grace period is specified,
for 60 days); or
(d) 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 or the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a
period of 60 days; or
(e) the related Mortgagor shall consent to the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property;
or
(f) 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; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings
with respect to the related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(w) with respect to the circumstances described in clause
(a) above, when the related Mortgagor has made three
consecutive full and timely Monthly
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Payments under the terms of such Mortgage Loan (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);
(x) with respect to the circumstances described in
clauses (b), (d), (e) and (f) above, when such
circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause
(c) above, when such default is cured; and
(z) with respect to the circumstances described in clause
(g) above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan.
"Standard & Poor's": Standard & Poor's Ratings Services, a
division of McGraw-Hill, Inc., or its successor in interest. If neither such
rating agency 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 to the Trustee, the Master 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).
"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), the Cut-off Date Balance of such Mortgage Loan, 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 distributed to Certificateholders
on such Distribution Date, and (ii) the principal portion of any Realized Loss
and Additional Trust Fund Expenses incurred in respect of such Mortgage Loan
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(or successor or REO Loan) during the related Collection Period. 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 in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Stripped Mortgage Loan": Mortgage Loan No. 124 set forth on
the Mortgage Loan Schedule.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class R-I, Class R-II or Class R-III 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.
"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 regulation section 1.860F-4(d) and
temporary Treasury regulation section 301.6231(a)(7)-1T, which Person shall be
the applicable Plurality Residual Certificateholder.
"Tax Returns": 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 or local tax laws.
"Transaction Screen Process": An environmental assessment
conducted in accordance with the Standard Practice for Environmental Site
Assessments: Transaction Screen Process E 1528-93 (American Society for Testing
and Materials 1993).
"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.
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"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, all of the assets of REMIC I,
REMIC II and REMIC III.
"Trustee": Bankers Trust Company of California, N.A., its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee's Fee": With respect to each Mortgage Loan and each
REO Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05.
"Trustee Fee Rate": .0075% per annum.
"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 (other than a REMIC I Regular PO Interest), for any
Distribution Date, one month's interest at the REMIC I Remittance Rate
applicable to such REMIC I Regular Interest for such Distribution Date, accrued
on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date and, to the extent
permitted under applicable law, also on any Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest from prior Distribution Dates that was
not previously deemed paid. With respect to any REMIC II Regular Interest (other
than REMIC II Regular Interest Z), for any Distribution Date, one month's
interest at the REMIC II Remittance Rate, 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 (other than a REMIC I Regular PO 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 (a) 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 Interest
for such Distribution Date and (b) with respect to any REMIC I Regular Interest
to which an Appraisal Reduction Amount has been allocated, any Appraisal
Reduction Amount Shortfall. With respect to any REMIC II Regular Interest (other
than REMIC II Regular Interest Z) for any Distribution Date, the Uncertificated
Accrued Interest in respect of such REMIC II Regular
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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 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 (other than a REMIC I Regular PO
Interest) shall equal the Cut-off Date Balance of the related Mortgage Loan
minus any Discount Mortgage Loan PO Strip, the Uncertificated Principal Balance
of the REMIC I Regular PO Interest shall equal the Discount Mortgage Loan PO
Strip of the related Discount Mortgage Loan and the Uncertificated Principal
Balance of each REMIC II Regular Interest shall equal the amount set forth in
the Preliminary Statement hereto as its initial stated principal amount. On each
Distribution 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(h), 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(i), and, if
and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date as provided in Section 4.04.
"Underwriter": Each of Merrill Lynch and First Union.
"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 political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
"Updated Mortgage Loan Schedule": The monthly loan schedule to
be prepared by the Master Servicer and delivered to the Trustee and the
Depositor pursuant to Section 3.12(c), which monthly loan schedule shall be
substantially in the form of Exhibit E-2.
"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 Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
E, Class F and Class G 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
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Percentage Interests evidenced by their respective Certificates. Solely for the
purpose of determining the Voting Rights of the Classes of Certificates, the
aggregate Appraisal Reduction Amount (determined as set forth herein) shall be
treated as Realized Losses with respect to the calculation of the Certificate
Principal Balances thereof. In addition, if either the Master Servicer or the
Special Servicer is the holder of any Certificate, neither of the Master
Servicer or Special Servicer, in its capacity as a Certificateholder, shall have
Voting Rights with respect to matters concerning compensation affecting the
Master Servicer or the Special Servicer.
"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 six decimal places, of the
respective REMIC I Remittance Rates in respect of the REMIC I Regular Interests
(other than the REMIC I Regular PO Interests) for such Distribution Date,
weighted on the basis of the respective Uncertificated Principal Balances of
such REMIC I Regular Interests outstanding immediately prior to such
Distribution Date.
"Yield Maintenance Charge": Payments paid or payable, as the
context requires, on a Mortgage Loan as the result of a Principal Prepayment
thereon, not otherwise due thereon in respect of principal or interest, which
have been calculated (based on Scheduled Payments on such Mortgage Loan) to
compensate the holder for reinvestment losses based on the value of an interest
rate index at or near the time of prepayment. 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 Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans (excluding the Master Servicer Strip), (ii)
Section 3 of each of the Mortgage Loan Purchase Agreements and (iii) all other
assets included or to be included in REMIC I. 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), 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 either Mortgage Loan Seller or the Depositor to comply with the
document delivery requirements of the respective Mortgage Loan Purchase
Agreement and this Section 2.01 (b).
(c) The Master Servicer shall, at the Depositor's expense and
direction, as to each Mortgage Loan, promptly (and in any event within 30 days
following the Closing Date) 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 delivered to the
Custodian, each assignment of Mortgage, assignment of Assignment of Leases and
any other recordable documents relating to the Mortgage Loan, in favor of the
Trustee referred to in clauses (iv) and (v) of the definition of "Mortgage File"
and each UCC-2 and UCC-3 assignment in favor of the Trustee and 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 following recording, and each such UCC-2 and
UCC-3 assignment shall reflect that the file copy thereof should be returned to
the Custodian 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 Master Servicer shall direct the appropriate Mortgage Loan Seller
pursuant to the applicable 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
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thereafter the Master Servicer 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) 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 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 REMIC I by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, 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, (ii) a copy of a fully
executed counterpart of each Mortgage Loan Purchase Agreement, and (iii) all
other assets delivered to it and included in REMIC I, 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 such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders. In addition, the Custodian hereby
certifies to each of the Depositor, the Master Servicer, the Special Servicer
and the Mortgage Loan Sellers, that except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery, 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 and the Mortgage Loan
Sellers substantially in 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 Mortgage File, clause (vi) of the definition of "Mortgage File" are in its
possession, (ii) all documents delivered or caused to be delivered by the
Mortgage Loan Sellers constituting the related Mortgage File have been reviewed
by it and appear regular on their face and 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 the items
specified in clauses (ii), (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
15 days after the Closing Date. Such revised schedule shall be treated as if it
was attached hereto as Exhibit C.
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(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 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), (ii), (iv) and (vii)
and, to the extent provided in the Mortgage File, clauses (iii), (v), (vi) and
(viii) of the definition of "Mortgage File" are in its possession, (ii) all
documents received by it in respect of such Mortgage Loan have been reviewed by
it and appear regular on their face and 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), (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.
SECTION 2.03. Mortgage Loan Seller's Repurchase 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,
is missing, 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, such party shall
give prompt written notice to the other parties hereto. Promptly upon becoming
aware of any such Document Defect or Breach, the Master Servicer shall request
that the respective Mortgage Loan Seller, not later than 90 days from such
Mortgage Loan Seller's receipt of such notice, 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 cannot be cured within the periods
hereinafter set forth, repurchase the affected Mortgage Loan at the applicable
Purchase Price in accordance with the Mortgage Loan Purchase Agreement;
provided, however, that if such Document Defect or Breach is capable of being
cured but not within such 90-day period and such 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; and provided, further, that with
respect to such
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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 such 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, the Master Servicer shall
designate the Certificate Account as the account to which funds in the amount of
the Purchase Price are to be wired. Any such repurchase 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.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall each tender to the appropriate Mortgage
Loan Seller, upon delivery to each of them of a receipt executed by such
Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File shall be endorsed or assigned to the
extent necessary or appropriate to such Mortgage Loan Seller or its designee in
the same manner, and pursuant to appropriate forms of assignment, substantially
similar to the manner and forms pursuant to which documents were previously
assigned to the Trustee; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release.
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 and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
(c) 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.
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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, 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) The Depositor 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
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.
(v) 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.
(vi) The transfer of the Mortgage Loans to the
Trustee 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.
(vii) 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 adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or
the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the
Mortgage Loans to the Trust Fund pursuant to this Agreement,
(A) the Depositor has good and
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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.
(ix) The Depositor is transferring the Mortgage Loan
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.
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 of the
assets included in REMIC I. Concurrently with such assignment and in exchange
therefor, 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 Trustee for the benefit of the Holders of REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
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 REMIC 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, authenticated and
delivered to or upon the order of the Depositor, the Class R-II Certificates in
authorized denominations.
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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
Regular Interests to the Trustee 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 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 Authenticating Agent has authenticated and delivered to or upon the 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.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders, in accordance with any and all applicable laws, the
terms of this Agreement and of the respective Mortgage Loans and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Mortgage Loans that are not Specially
Serviced Mortgage Loans, and (ii) the Special Servicer shall service and
administer (x) each Specially Serviced Mortgage Loan, and (y) each REO Property;
provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein. All references herein to the respective duties of the
Master Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21.
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(b) Subject to Section 3.01(a), 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, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and 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 (iii) 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, at the written request of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer and the
Special Servicer any limited powers of attorney and other documents necessary or
appropriate to enable them to carry out their servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held liable
for any misuse of any such power of attorney by the Master Servicer or the
Special Servicer.
(c) The relationship of each of the Master Servicer and the
Special 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 venture, partner
or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall, to the extent such procedures shall be consistent with this Agreement,
follow such collection procedures in accordance with the Servicing Standard.
Consistent with the foregoing, the Special Servicer or Master Servicer may waive
any Penalty Interest or late payment charge in connection with any payment on a
Mortgage Loan that became delinquent while it is obligated to service such
Mortgage Loan hereunder.
(b) All amounts collected in respect of any Mortgage Loan in
the form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage or, if required
pursuant to the express provisions of the related Mortgage, or as determined by
the Master Servicer or Special Servicer in accordance with the Servicing
Standard, to the repair or restoration of the related Mortgaged Property, and,
in the absence of such express provisions,
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shall be applied for purposes of this Agreement, after deduction of the Master
Servicer Strip: first, as a recovery of any related and unreimbursed Servicing
Advances plus interest accrued thereon; second, as a recovery of accrued and
unpaid interest, to the extent such amounts have not been previously advanced,
at the related Mortgage Rate on such Mortgage Loan; third, as a recovery of
principal of such Mortgage Loan then due and owing, to the extent such amounts
have not been previously advanced, including, without limitation, by reason of
acceleration of the Mortgage Loan following a default thereunder; fourth, in
accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts then due and owing under such Mortgage Loan,
including, without limitation, Prepayment Premiums, Yield Maintenance Charges
and Penalty Interest; and fifth, as a recovery of any remaining principal of
such Mortgage Loan to the extent of its entire remaining unpaid principal
balance. All amounts collected on any Mortgage Loan in the form of Liquidation
Proceeds of the nature described in clauses (iv) and (v) of the definition
thereof shall be deemed to be applied: first, as a recovery of any related and
unreimbursed Servicing Advances plus interest accrued thereon; second, as a
recovery of accrued and unpaid interest to, the extent such amounts have not
been previously advanced, on such Mortgage Loan to but not including the Due
Date in the Collection Period of receipt; and third, as a recovery of principal,
to the extent such amounts have not been previously advanced, of such Mortgage
Loan to the extent of its entire unpaid principal balance. No such amounts shall
be applied to the items constituting additional servicing compensation as
described in the first sentence of Section 3.11(b) unless and until all
principal and interest then due and payable on such Mortgage Loan has been
collected. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof. The provisions of this paragraph with
respect to the application of amounts collected shall not alter in any way the
right of the Master Servicer or the Special Servicer to receive payments from
the Certificate Account as set forth in clauses (ii) through (xiv) of Section
3.05(a) from amounts so applied.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) Each of the Master Servicer and the Special Servicer
shall, as to those Mortgage Loans it is obligated to service hereunder,
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained. Each Servicing
Account shall be an Eligible Account. Withdrawals of amounts so collected from a
Servicing Account may be made (to the extent amounts have been escrowed for such
purpose) only to: (i) effect payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and comparable items; (ii)
reimburse the Master Servicer or the Special Servicer for any Servicing Advances
plus interest accrued thereon; (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest, if required and as described
below, to Mortgagors on balances in the Servicing Account; or (v) clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. The Master Servicer and the Special Servicer shall
each pay or cause to be paid to the Mortgagors interest, if any, earned on the
investment of funds in Servicing Accounts maintained thereby, if required by law
or the terms of the related Mortgage Loan. If the Master Servicer or the Special
Servicer shall deposit in a Servicing Account any amount
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not required to be deposited therein, it may at any time withdraw such amount
from such Servicing Account, any provision herein to the contrary
notwithstanding.
(b) Each of the Master Servicer and the Special Servicer
shall, as to those Mortgage Loans it is obligated to service hereunder, (i)
maintain accurate records with respect to the 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 and (ii) use reasonable efforts to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and shall effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment for
which it is responsible, the Master Servicer or the Special Servicer, as the
case may be, shall apply Escrow Payments as allowed under the terms of the
related Mortgage Loan or, if such Mortgage Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall, as to those Mortgage Loans it is
obligated to service hereunder, enforce the requirement of the related Mortgage
that the Mortgagor make payments in respect of such items at the time they first
become due.
(c) Each of the Master Servicer and the Special Servicer
shall, as to those Mortgage Loans it is obligated to service hereunder, advance
with respect to the related Mortgaged Property, all such funds as are necessary
for the purpose of effecting the payment of (i) real estate taxes, assessments
and other similar items, (ii) ground rents (if applicable), and (iii) premiums
on Insurance Policies, in each instance if and to the extent Escrow Payments (if
any) 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, and
provided that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such advances shall be reimbursable in the
first instance from related collections from the Mortgagors, and further as
provided in Section 3.05(a). 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 such Mortgaged Properties shall,
for purposes of this Agreement, including, without limitation, the Paying
Agent's calculation of monthly distributions to Certificateholders, be added to
the unpaid principal balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit. The foregoing shall in no way
limit the Master Servicer's or Special Servicer's ability to charge and collect
from the Mortgagor such costs together with interest thereon.
(d) In connection with its recovery of any Servicing Advance
from the Certificate Account pursuant to Section 3.05(a), each of the Master
Servicer and the Special Servicer shall be entitled to receive, 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 itself or the Special
Servicer, as appropriate, for any Servicing Advance as soon as practicable after
funds available for such purpose are deposited in the Certificate Account.
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(e) The determination by either the Master Servicer or the
Special Servicer that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made in accordance with the Servicing Standard and shall be
evidenced by an Officers' Certificate delivered promptly to the Trustee and the
Depositor, setting forth the basis for such determination, together with a copy
of any appraisal of the related Mortgaged Property or REO Property, as the case
may be, performed pursuant to Section 3.09(a) by the Master Servicer or by the
Special Servicer if the loan is a Defaulted Mortgage Loan or, if no such
appraisal has been performed, a copy of an appraisal of the related Mortgaged
Property or REO Property performed within the twelve months preceding such
determination by an Independent Appraiser or other expert in real estate
matters, and further accompanied by related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged Property
and any engineers' reports, environmental surveys or similar reports that the
Master Servicer or the Special Servicer may have obtained and that support such
determination.
(f) Each of the Master Servicer and the Special Servicer
shall, as to those Mortgage Loans it is obligated to service hereunder,
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 to pay for, or to
reimburse the related Mortgagor in connection with, the related repairs and/or
capital improvements at the related Mortgaged Property if the repairs and/or
capital improvements have been completed, 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. All Reserve Accounts shall be Eligible Accounts.
SECTION 3.04. Certificate Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or
more accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, upon receipt (in the case of
payments by Mortgagors or other collections on the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by the Master Servicer or on its behalf 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, which payments shall be delivered
promptly to the appropriate Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse),
or payments (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 of the
Mortgage Loans;
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(ii) all payments on account of interest on the
Mortgage Loans, including Penalty Interest;
(iii) all Prepayment Premiums and Yield Maintenance
Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds
(other than Liquidation Proceeds described in clause (vi) of
the definition thereof that are required to be deposited in
the Distribution Account pursuant to Section 9.01) received in
respect of any Mortgage Loan;
(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;
(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 policy; and
(vii) any amounts required to be transferred from an
REO Account pursuant to Section 3.16(c).
The foregoing requirements for deposit in the Certificate
Account shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, and amounts that the Master
Servicer is entitled to retain as additional servicing compensation pursuant to
Section 3.11(b), need not be deposited by the Master Servicer in the Certificate
Account. 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 from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional servicing compensation in accordance with Section 3.11(d)
assumption fees, late charges and other transaction fees received by the Master
Servicer with respect to Specially Serviced Mortgage Loans upon receipt of a
certificate of a Servicing Officer of the Special Servicer describing the item
and amount. The Certificate Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i)
through (iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than one Business Day after receipt, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. 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). With respect to any such
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amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer and shall deliver
promptly, but in no event later than three Business Days after receipt, any such
check to the Master Servicer by overnight courier, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason.
(b) The Paying Agent shall establish and maintain one or more
trust accounts (collectively, the "Distribution Account") to be held in trust
for the benefit of the Certificateholders. The Distribution Account shall be an
Eligible Account. The Master Servicer shall deliver to the Paying Agent each
month on or before the P&I Advance Date therein, for deposit in the Distribution
Account, an aggregate amount of immediately available funds equal to that
portion of the Available Distribution Amount (calculated without regard to
clause (b)(iii) of the definition thereof) for the related Distribution Date
then on deposit in the Certificate Account, together with (i) any Prepayment
Premiums or Yield Maintenance Charges received on the Mortgage Loans during the
related Collection Period and (ii) in the case of the final Distribution Date,
any additional amounts contemplated by the second paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Paying Agent for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the
Master Servicer in accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the
Master Servicer pursuant to Section 3.06 in connection with
losses realized on Permitted Investments with respect to funds
held in the Distribution Account;
(iii) any amounts required to be deposited by the
Master Servicer pursuant to Section 3.19 in connection with
Prepayment Interest Shortfalls; and
(iv) any Liquidation Proceeds paid by the Master
Servicer in connection with the purchase of all of the
Mortgage Loans and any REO Properties pursuant to Section
9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited in the Certificate Account pursuant
to Section 9.01.
The Paying Agent shall, upon receipt, deposit in the
Distribution Account any and all amounts received by the Paying Agent that are
required by the terms of this Agreement to be deposited therein.
(c) Funds in the Certificate Account and the Distribution
Account may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer and Paying Agent, as the case
may be, shall give notice to the Special
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Servicer and the Rating Agencies of the location of the Distribution Account and
Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Paying Agent shall give
notice to the Trustee, the Master Servicer and the Special Servicer of the
location of the Distribution Account as of the Closing Date and of the new
location of the Distribution Account prior to any change thereof.
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 (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Paying Agent for deposit in the
Distribution Account the amounts required to be so deposited
pursuant to the first paragraph of Section 3.04(b);
(ii) to reimburse itself for unreimbursed P&I
Advances, the Master Servicer's right to reimburse itself
pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable Advances, which are reimbursable
pursuant to clause (vii) below) being limited to amounts that
represent Late Collections of interest (net of the related
Master Servicing Fees) on and principal (net of any related
Principal Recovery Fee) received in respect of the particular
Mortgage Loan or REO Loan as to which such P&I Advance was
made;
(iii) to pay to itself earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan,
the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any Mortgage Loan or REO Loan being
limited to amounts received on or in respect of such Mortgage
Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of
REO Revenues, Liquidation Proceeds or Insurance Proceeds) that
are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Principal
Recovery Fees in respect of each Specially Serviced Mortgage
Loan, Corrected Mortgage Loan and REO Loan, the Special
Servicer's (or, if applicable, any predecessor Special
Servicer's) right to payment pursuant to this clause (v) with
respect to any such Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such
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Mortgage Loan (whether in the form of payments, Liquidation
Proceeds or Insurance Proceeds) or such REO Loan (whether in
the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as a recovery of principal
thereon (provided that no Principal Recovery Fee shall be
payable out of any Liquidation Proceeds received in connection
with the purchase of any Mortgage Loan or REO Property by the
applicable Mortgage Loan Seller pursuant to the respective
Mortgage Loan Purchase Agreement, by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), by the Master
Servicer or Special Servicer pursuant to Section 3.18(c) or by
the Master Servicer or Depositor pursuant to Section 9.01);
(vi) to reimburse itself or the Special Servicer for
any unreimbursed Servicing Advances, the Master Servicer's and
Special Servicer's respective rights to reimbursement pursuant
to this clause (vi) with respect to any Servicing Advance
being limited to payments made by the related Mortgagor that
are allocable to such Servicing Advance, or to Liquidation
Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse itself or the Special Servicer for
any unreimbursed Advances that have been or are determined to
be Nonrecoverable Advances or to pay itself, with respect to
any Mortgage Loan or REO Property, any related earned Master
Servicing Fee that remained unpaid in accordance with clause
(iii) above following a Final Recovery Determination made with
respect to such Mortgage Loan or REO Property and the deposit
into the Certificate Account of all amounts received in
connection therewith;
(viii) at such time as it reimburses itself for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above, to pay itself or the Special Servicer, as the case may
be, any interest accrued and payable thereon in accordance
with Section 3.03(d) or 4.03(d), as applicable;
(ix) to pay for costs and expenses incurred by the
Trust Fund pursuant to Section 3.09(c);
(x) to pay itself, as additional servicing
compensation in accordance with Section 3.11(b), interest and
investment income earned in respect of amounts 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 Collection Period;
(xi) to pay for the cost of an independent appraiser
or other expert in real estate matters retained pursuant to
Section 3.03(e), 3.09(a) or 3.18(e);
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(xii) to pay itself, the Special Servicer, the
Depositor, or any of their respective directors, officers,
employees and agents, as the case may be, any amounts payable
to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel
contemplated by Section 3.17(a)(iii), (B) the cost of the
Opinions of Counsel contemplated by Sections 3.09(b)(ii),
3.09(c), 3.16(a) and 11.02(a), (C) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by
the Master Servicer or the Special Servicer that protects or
is in furtherance of the rights and interests of
Certificateholders, (D) the cost of obtaining the REO
Extension sought by the Special Servicer as contemplated by
Section 3.16(a), and (E) the cost of recording this Agreement
in accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the
appropriate Mortgage Loan Seller, the Majority Subordinate
Certificateholder or any other Person, 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;
(xv) to pay itself the Master Servicer Strip; and
(xvi) to clear and terminate the Certificate Account
at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Certificate Account
pursuant to clauses (ii) - (xv) above.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for 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 pursuant to Section 4.01 or 9.01, as
applicable;
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(ii) to pay the Trustee or any of its directors,
officers, employees and agents, as the case may be, any
amounts payable or reimbursable to any such Person pursuant to
Section 8.05;
(iii) to pay the Master Servicer, as additional
servicing compensation in accordance with Section 3.11(b),
interest and investment income earned in respect of amounts
held in the Distribution Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings
with respect to the Distribution Account for any Collection
Period);
(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 Sections 9.02(a)(i) and 10.01(i), or (C) as contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment
to this Agreement 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 or the Special Servicer is
liable therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator for 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;
(viii) to pay to the Extension Adviser any amounts
payable to it pursuant to Section 3.24; and
(ix) to clear and terminate the Distribution Account
at the termination of this Agreement pursuant to Section 9.01.
SECTION 3.06. Investment of Funds in the Certificate Account,
the Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining the Certificate Account and may direct in writing the
Paying Agent with respect to the Distribution Account (each, for purposes of
this Section 3.06, an "Investment Account"), and the Special Servicer may direct
in writing any depository institution maintaining the REO Account (also, for
purposes of this Section 3.06, an "Investment Account"), to invest, or if it
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is such depository institution, may itself invest, the funds held therein 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 (with respect to Permitted
Investments of amounts in the Certificate Account and the Distribution Account)
and the Special Servicer (with respect to Permitted Investments of amounts in
the REO Account), on behalf of the Trustee, shall (and the Trustee hereby
designates the Master Servicer and the Special Servicer, as applicable, as the
person that shall) maintain continuous possession of any Permitted Investment
that is either (i) a "certificated 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. Possession of
any such Permitted Investment by the Master Servicer or the Special Servicer
shall constitute possession by a Person designated by the Trustee for purposes
of Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account), the Paying Agent (in the case of the Distribution Account)
or the Special Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, 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) Whether or not the Master Servicer directs the investment
of funds in either of the Certificate Account or the Distribution Account,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for each Collection Period, shall
be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or withdrawal by
the Paying Agent at its direction in accordance with Section 3.05(b), as
applicable. Whether or not the Special Servicer directs the investment of funds
in the REO Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each
Collection Period, 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(b). If any loss shall be incurred in respect of any Permitted Investment on
deposit in any Investment Account, the Master Servicer (in the case of the
Certificate Account and the Distribution Account) and the Special Servicer (in
the case of the REO Account) shall promptly deposit therein from its own funds,
without right of reimbursement, no later than the end of the
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Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% 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.
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including,
without limitation, the calculation of the Available Distribution Amount, the
amounts so invested shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans other
than Specially Serviced Mortgaged Loans) and the Special Servicer (with respect
to Specially Serviced Mortgage Loans) shall cause to be maintained for each
Mortgaged Property all insurance coverage as is required under the related
Mortgage; provided that if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer shall exercise such discretion in a manner consistent with the
Servicing Standard; and provided further that, if and to the extent that a
Mortgage so permits, the related Mortgagor shall be required to obtain the
required insurance coverage from Qualified Insurers that have a general policy
rating of at least A-X in A.M. Best's Key Rating Guide. The Majority Subordinate
Certificate holder may request that earthquake insurance be secured for one or
more Mortgaged Properties at the expense of the Majority Subordinate
Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also
cause to be maintained for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage; provided that
all such insurance shall be obtained from Qualified Insurers that, if they are
providing casualty insurance, shall have a general policy rating of at least "A"
and "AA" from Standard & Poor's and Fitch, respectively (or solely Standard &
Poor's, if such insurer is not rated by Fitch). All such insurance policies
shall contain (if they insure against loss to property and do not relate to an
REO Property) a "standard" mortgagee clause, with loss payable to the Master
Servicer (in the case of insurance maintained in respect of Mortgage Loans), and
shall be in the name of the Special Servicer (in the case of insurance
maintained in respect of REO Properties), on behalf of the Trustee; in each case
such insurance shall be issued by an insurer authorized under applicable law to
issue such insurance. Any amounts collected by the Master Servicer or the
Special Servicer under any such 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
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each case subject to the rights of any tenants and ground lessors, as the case
may be, and the terms of the related Mortgage and in each case in accordance
with the Servicing Standard) shall be deposited in the Certificate Account,
subject to withdrawal pursuant to Section 3.05(a), in the case of amounts
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(b) If the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Mortgage Loans and/or REO
Properties that it is required to service and administer, then, to the extent
such policy (i) is obtained from a Qualified Insurer having a claims-paying
rating of "A" and "AA" or better from Standard & Poor's and Fitch, respectively
(or solely Standard & Poor's, if such insurer is not rated by Fitch), and (ii)
provides protection equivalent to the individual policies otherwise required,
the Master Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on the related Mortgaged Properties. Such policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a hazard insurance policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses that would have been covered by
such policy, promptly deposit into the Certificate Account from its own funds
the amount not otherwise payable under the blanket policy because of such
deductible clause. The Master Servicer or the Special Servicer, as appropriate,
shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep
in force with Qualified Insurers having a claims-paying rating of "A" and "AA"
or better from Standard & Poor's and Fitch, respectively, a fidelity bond in
such form and amount as would permit it to be a qualified FNMA seller-servicer
of multifamily mortgage loans, or in such other form and amount as would not
cause the qualification, downgrading or withdrawal of any rating assigned by
either Rating Agency to the Certificates (as evidenced in writing from each
Rating Agency). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provision if an Affiliate thereof has
such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Master Servicer or the Special
Servicer, as the case may be. Such fidelity bond shall provide that it may not
be canceled without ten days' prior written notice to the Trustee.
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Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers having a claims-paying rating of "A"
and "AA" or better from Standard & Poor's and Fitch, respectively, a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers, employees and agents in connection with its servicing obligations
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans,
or in such other form and amount as would not adversely affect any rating
assigned by either Rating Agency to the Certificates (as evidenced in writing
from each Rating Agency). Each of the Master Servicer and the Special Servicer
shall be deemed to have complied with the foregoing provisions if an Affiliate
thereof has such insurance and, by the terms of such policy or policies, the
coverage afforded thereunder extends to the Master Servicer or the Special
Servicer, as the case may be. Any such errors and omissions policy shall provide
that it may not be canceled without ten days' prior written notice to the
Trustee.
For so long as the long-term debt obligations of the Master
Servicer or Special Servicer, as the case may be (or in the case of the initial
Master Servicer and Special Servicer, their respective direct or indirect
parent), are rated "AA" or better by both Rating Agencies, such Person may
self-insure with respect to the risks described in this subsection.
SECTION 3.08. Enforcement of Alienation Clauses.
With respect to those Mortgage Loans it is obligated to
service hereunder, each of the Master Servicer and the Special Servicer, on
behalf of the Trustee as the mortgagee of record, shall enforce the restrictions
contained in the related Mortgage on transfers or further encumbrances of the
related Mortgaged Property and on transfers of interests in the related
Mortgagor, unless the Master Servicer or the Special Servicer, as applicable,
has determined, consistent with the Servicing Standard, that waiver of such
restrictions would be in accordance with the Servicing Standard. Promptly after
the Master Servicer or Special Servicer has made any such determination, the
Master Servicer or Special Servicer shall deliver to the Trustee and the Master
Servicer (if such determination is made by the Special Servicer) an Officers'
Certificate setting forth the basis for such determination.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b)
through 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments, including, without limitation, pursuant to Section 3.20.
The Special Servicer shall be responsible for all costs and expenses (other than
costs or expenses that would, if incurred, constitute a Nonrecoverable Servicing
Advance) incurred by it in any such proceedings, and shall be entitled to
reimbursement therefor as provided in
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Section 3.05(a). Nothing contained in this Section 3.09 shall be construed so as
to require 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 Special
Servicer in its reasonable and good faith judgment taking into account the
factors described in Section 3.18(e) 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 Master Servicer or the
Special 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, it may, at the
expense of the Trust Fund, have an appraisal performed with respect to such
property by an Independent Appraiser or other expert in real estate matters.
With respect to each Required Appraisal Mortgage Loan, the Master Servicer will
be required to obtain a Required Appraisal (within 60 days) of a Mortgage Loan
becoming a Required Appraisal Mortgage Loan and thereafter shall obtain a letter
update of such Required Appraisal once every 12 months if such Mortgage Loan
remains a Required Appraisal Mortgage Loan; provided that if such Mortgage Loan
remains a Required Appraisal Loan for a period of two years following the date
such Mortgage Loan became a Required Appraisal Mortgage Loan, the Master
Servicer shall again be required to obtain a Required Appraisal once every 12
months if such Mortgage Loan remains a Required Appraisal Mortgage Loan. The
Master Servicer shall advance the cost of such Required Appraisal; provided,
however, that such expense will be subject to reimbursement to the Master
Servicer as a Servicing Advance out of general funds on deposit in the
Certificate Account pursuant to Section 3.05(a).
(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 may be withdrawn from
the Certificate Account pursuant to Section 3.05(a)) to the
effect that the holding of such personal property as part of
the Trust Fund will not cause the imposition of a tax on
either of REMIC I, REMIC II or REMIC III under the REMIC
Provisions or cause either of REMIC I, REMIC II or REMIC III
to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trustee, obtain title to a Mortgaged Property by deed in lieu of foreclosure
or otherwise, or take any other action with respect to any Mortgaged Property,
if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, made in accordance with the Servicing
Standard, be considered
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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 (a "potentially responsible party"), unless (A) (as evidenced by
an Officers' Certificate to such effect delivered to the Trustee that shall
specify all of the bases for such determination) the Special Servicer has
previously determined in accordance with the Servicing Standard, and based on a
Phase I Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Phase I Environmental Assessments and
performed within twelve months prior to any such acquisition of title or other
action (a copy of which Phase I Environmental Assessment shall be delivered to
the Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with
applicable environmental laws and regulations or, if not, that
it would maximize the recovery to the Certificateholders on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders
to be performed at the related Mortgage Rate) to acquire title
to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into
compliance therewith in all material respects; 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 reasonably be expected
to be required, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the
related Mortgage Rate) to acquire title to or possession of
the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property; and
(B) if the Special Servicer has determined that the Mortgaged Property is not in
compliance with applicable environmental laws or regulations, or that any such
circumstances or conditions described in clause (A)(ii) above are present at the
Mortgaged Property, the Special Servicer shall have notified the Trustee in
writing that (i) it has determined whether or not it or the Trustee could
reasonably be considered to be a potentially responsible party, and (ii) if it
has determined that it or the Trustee could reasonably be considered to be a
potentially responsible party, it has also determined that its and the Trustee's
interests are adequately protected, by indemnification or otherwise.
The Special Servicer shall undertake, in good faith,
reasonable efforts to make the determination referred to in clause (B)(i), and
may conclusively rely on the Phase I Environmental Assessment referred to above,
and upon an Opinion of Counsel, in making such determination. The cost of any
such Phase I Environmental Assessment and any such
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Opinion of Counsel, as well as the cost of any remedial, corrective or other
further action contemplated by clause (A)(i) and/or clause (A)(ii) of the
preceding paragraph, may be reimbursed to the Special Servicer from the
Certificate Account as an expense of the Trust Fund pursuant to Section 3.05(a);
and if any such Phase I Environmental Assessment so warrants, the Special
Servicer shall, at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (A)(i) and (A)(ii) of the preceding paragraph
have been satisfied.
(d) If the environmental testing contemplated by Section
3.09(c) above establishes that any of the conditions set forth in clauses (A)(i)
and (A)(ii) of the first sentence thereof has not been satisfied with respect to
any Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trustee, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage; provided that if such
Mortgage Loan has a then outstanding principal balance of greater than $1
million, prior to the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage, (i) the Special Servicer shall
have notified the Rating Agencies, Trustee and the Master Servicer in writing of
its intention to so release all or a portion of such Mortgaged Property, (ii)
the Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall have consented to such release within 30 days of the Trustee's
distributing such notice (failure to respond by the end of such 30-day period
being deemed consent).
(e) The Special Servicer shall report to the Master Servicer
and the Trustee monthly in writing as to any actions taken by the Special
Servicer with respect to any Mortgaged Property that represents security for a
defaulted Mortgage Loan as to which the environmental testing contemplated in
Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (A)(i) and (A)(ii) of the first sentence thereof has not been satisfied,
in each case until the earlier to occur of satisfaction of all such conditions
and release of the lien of the related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking 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 and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer shall prepare and file information
returns with respect to the receipt of mortgage interest received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P of
the Code and deliver to the Trustee and the Master Servicer an Officers'
Certificate stating that such reports have been filed. Such reports
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shall be in form and substance sufficient to meet the reporting requirements
imposed by Sections 6050H, 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination in respect
of any Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate delivered to the
Trustee and the Master Servicer no later than the third Business Day following
such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the
Special Servicer shall deliver to it any other information and copies of any
other documents in its possession with respect to a Specially Serviced Mortgage
Loan or the related Mortgaged Property.
SECTION 3.10. Trustee and Custodian to Cooperate;
Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer shall
promptly notify the Custodian by a certification (which certification shall be
in the form of a Request for Release in the form of Exhibit D-1 attached hereto
and shall be accompanied by the form of a release or discharge 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) have been or will be so
deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Certificate Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an
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REO Property, a copy of the Request for Release shall be released by the Trustee
or related Custodian to the Master Servicer or the Special Servicer, as
applicable.
(c) Within seven Business Days (or within such shorter period
(but no less than three Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee of an exigency) of
the Special Servicer's request therefor, the Trustee shall execute and deliver
to the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
reasonably 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 or to defend any legal
action or counterclaim filed against the Trust Fund, the Master Servicer or the
Special Servicer. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee 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 with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate and on the same principal amount
and for the same period respecting which the related interest payment due on
such Mortgage Loan or deemed to be due on such REO Loan is computed. The Master
Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Master Servicing Fees 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 in respect of any Mortgage Loan or REO Loan out of
that portion of related Insurance Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by Section 3.05(a). The right to
receive the Master Servicing 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.
(b) Additional servicing compensation in the form of
assumption fees, late charges, Penalty Interest, charges for beneficiary
statements or demands, amounts collected for checks returned for insufficient
funds and any similar fees (excluding Prepayment Premiums or Yield Maintenance
Charges), in each case to the extent actually paid by a
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Mortgagor with respect to a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, may be retained by the Master Servicer and are not required to be
deposited in the Certificate Account. The Master Servicer shall also be entitled
to additional servicing compensation in the form of (i) Prepayment Interest
Excesses (but only insofar as the aggregate of such Prepayment Interest Excesses
collected during any Collection Period exceeds the aggregate amount of
Prepayment Interest Shortfalls incurred during such Collection Period); (ii)
interest or other income earned on deposits in the Certificate Account and the
Distribution 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 Collection Period), and (iii) to the extent not required to be paid to any
Mortgagor under applicable law, any interest or other income earned on deposits
in the Servicing Accounts maintained thereby. 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 of its Sub-Servicers (other than
compensation) and the premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.07(b)), if and to the extent such 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 each REO Loan. 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 on the basis of the same
principal amount 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 as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage
Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account pursuant to Section 3.05(a).
In addition, with respect to each Specially Serviced Mortgage
Loan, Corrected Mortgage Loan and REO Loan, the Special Servicer shall be
entitled to the Principal Recovery Fee payable out of, and equal to 0.25% of,
all amounts (whether in the form of payments, Insurance Proceeds, Liquidation
Proceeds or REO Revenues) received in respect of such Mortgage Loan (or, in the
case of an REO Loan, in respect of the related REO Property) and allocable as a
recovery of principal in accordance with Section 3.02(b) or the definition of
"REO Loan", as applicable; provided that no Principal Recovery Fee shall be
payable in connection with, or out of Liquidation Proceeds resulting from, the
purchase of any Mortgage Loan or REO Property by the applicable Mortgage Loan
Seller pursuant to the respective Mortgage Loan Purchase Agreement, by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Master Servicer or the Depositor pursuant to Section 9.01; provided further that
if any Person is acting as Special Servicer at such time as any Specially
Serviced Mortgage Loan became a Corrected Mortgage Loan and such Person is
subsequently terminated as Special
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Servicer hereunder, and if such Corrected Mortgage Loan was still a Corrected
Mortgage Loan at the time of such termination, then such Person shall, following
such termination, continue to be entitled to all Principal Recovery Fees payable
in respect to such Corrected Mortgage Loan, and no successor Special Servicer
shall be entitled to any Principal Recovery Fees payable in respect thereof, in
either case unless and until such Corrected Mortgage Loan again becomes a
Specially Serviced Mortgage Loan or becomes an REO Loan; and provided further
that if any Person is terminated as Special Servicer hereunder while the sale of
any Specially Serviced Mortgage Loan or REO Property is pending, then (subject
to the second preceding proviso) such Person shall be entitled to all, and the
successor Special Servicer shall be entitled to none, of the Principal Recovery
Fee payable in connection with the receipt of the Liquidation Proceeds derived
from such sale.
The Special Servicer's right to receive the Special Servicing
Fee and Principal Recovery 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 Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of late
charges and assumption fees received on or with respect to Specially Serviced
Mortgage Loans shall be promptly paid to the Special Servicer by the Master
Servicer 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: (i) interest or other income
earned on deposits in the REO Account, if established, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the REO Account for each Collection Period); and (ii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts maintained
by the Special Servicer. 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 due
and owing to any of its Sub-Servicers (other than compensation) and the premiums
for any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), and the Special Servicer shall be entitled to reimbursement
therefor as expressly provided in Section 3.05(a) if and to the extent such
expenses are not payable directly out of the Certificate Account or the REO
Account.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform a
physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Master
Servicer shall at its expense perform an inspection of each Mortgaged Property
at least once per calendar year, if the Special Servicer has not already done so
in that calendar year pursuant to the preceding sentence. The Master Servicer or
Special Servicer, as the case may be, shall prepare a written report of each
such inspection performed by it that sets forth in detail the condition of the
Mortgaged Property and
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that specifies the existence of: (i) any sale, transfer or abandonment of the
Mortgaged Property of which the Master Servicer or the Special Servicer, as
applicable, is aware, (ii) any change in the condition or value of the Mortgaged
Property that it, in its reasonable judgment, considers material, or (iii) any
waste committed on the Mortgaged Property. The Master Servicer and the Special
Servicer shall each deliver to the Trustee, and in the case of the Special
Servicer, to the Master Servicer, the Majority Subordinate Certificateholder (if
such person is not then the Special Servicer), and any Sub-Servicers of such
Specially Serviced Mortgage Loan, or REO Property, a copy of each such written
report prepared by it within 30 days of the related inspection, and the Master
Servicer or Special Servicer shall cause the same to be delivered, within 10
days after its receipt thereof, to the Depositor.
(b) The Special Servicer, in the case of any Specially
Serviced Mortgage Loan, and the Master Servicer, in the case of all other
Mortgage Loans, shall make reasonable efforts to collect promptly from each
related Mortgagor annual operating statements, budgets and rent rolls of the
related Mortgaged Property, and financial statements of such Mortgagor, to the
extent delivery of such items is required pursuant to the terms of the related
Mortgage. In addition, the Special Servicer shall cause annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. The Special Servicer shall deliver copies of all of the foregoing
items so collected thereby to the Trustee, the Master Servicer and any
Sub-Servicers, and the Master Servicer shall cause the same (including any items
collected by it) to be delivered, within 10 days after its receipt thereof, to
the Depositor and the Majority Subordinate Certificateholder (if such Person is
not then the Special Servicer). If requested by the Master Servicer, the Special
Servicer shall take reasonable steps to ensure that such items present the
information contained therein in substantially the same manner as such
information was presented when such items were collected by the Depositor.
Promptly following its receipt thereof, the Master Servicer or the Special
Servicer shall review all such items as may be collected in respect of each
Mortgage Loan and REO Property and, in the absence of actual knowledge that any
such item contains erroneous information, shall (based thereon): (i) calculate
the occupancy percentage for the related Mortgaged Property or REO Property, as
the case may be (such occupancy percentage shall represent a ratio of the number
of rooms occupied per day (summed over a specified period of time) to the number
of rooms available for occupancy per day (summed over such specified period of
time) in the case of a Mortgaged Property that is a hotel, shall be calculated
on a per unit basis in the case of a Mortgaged Property that is a multifamily
rental property and on a net square footage basis in all other cases or on any
other basis that the Master Servicer or the Special Servicer deems appropriate
in accordance with the Servicing Standard and identifies to the Trustee, the
Master Servicer and the Depositor); (ii) in accordance with Exhibit E-1,
calculate the Net Operating Income for the related Mortgaged Property or REO
Property, as the case may be; and (iii) calculate the Debt Service Coverage
Ratio for the related Mortgage Loan or REO Loan, as the case may be. The Updated
Mortgage Loan Schedule to be prepared each month by the Master Servicer pursuant
to Section 3.12(c) shall reflect the most recent calculations made by the Master
Servicer or Special Servicer pursuant to the preceding sentence with respect to
each Mortgage Loan and REO Loan and shall identify the period covered by the
financial statements and/or the date of the rent roll from which such
calculations were made. All information to be
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provided by the Special Servicer to the Master Servicer under this Section shall
be provided not later than five Business Days prior to the date that the Master
Servicer is required to deliver such information to the Paying Agent.
(c) Not later than the fourth Business Day following each
Determination Date, the Master Servicer shall deliver to the Paying Agent (for
receipt by the Paying Agent not later than such fourth Business Day following
each Determination Date), by electronic transmission (or in such other form to
which the Paying Agent and the Master Servicer may agree), with a hard copy of
such transmitted information to follow not later than the fifth Business Day
following such Determination Date, an accurate and complete Updated Mortgage
Loan Schedule, substantially in the form of Exhibit E-2, prepared as if the
Determination Date were the Cut-off Date and setting forth, among other things,
the items referred to in the definition of "Mortgage Loan Schedule", as well as
the items referred to in Section 3.12(b), further identifying on such schedule
each Mortgage Loan (i) that has become an REO Loan, and the date of the related
REO Acquisition and (ii) that matured, prepaid in full or (whether before or
after an REO Acquisition) was otherwise liquidated during the Collection Period
ending on such Determination Date and, in each case, specifying the date of the
related maturity, prepayment or Liquidation Event, the amount collected in
connection therewith and the amount of any Realized Loss and/or Additional Trust
Fund Expenses incurred in connection therewith. The Paying Agent, on each
Distribution Date, shall deliver to the Depositor a copy of the Updated Mortgage
Loan Schedule.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall
deliver to the Trustee and the Rating Agencies, and, in the case of the Special
Servicer, to the Master Servicer, on or before April 30 of each year, beginning
April 30, 1997, an Officers' 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 fulfilled all of its
obligations under this Agreement in all material respects 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 portion of the Trust Fund 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. The Master Servicer and Special Servicer shall
deliver a copy of such Officer's Certificate to the Depositor.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 1997
each of the Master Servicer and the Special Servicer at its expense shall cause
a firm of Independent public accountants (which may also render other services
to the Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish
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a statement to the Trustee, to the Rating Agencies, to the Depositor and, in the
case of the Special Servicer, to the Master Servicer to the effect that such
firm has examined certain documents and records relating to the performance of
the Master Servicer or the Special Servicer, as the case may be, of its
servicing duties under agreements substantially similar to this Agreement, in
all material respects, for the previous calendar year (except that the first
such report shall cover the period from the Closing Date through December 31,
1996) and that, on the basis of such examination, conducted substantially in
compliance with the Uniform Single Audit Program for Mortgage Bankers, such firm
confirms that such servicing duties have been performed in compliance with such
agreements, in all material respects, except for such significant exceptions or
errors in records that, in the opinion of such firm, the Uniform Single Audit
Program for Mortgage Bankers requires it to report. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage loans
by Sub-Servicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers (rendered within one year of such statement) of independent public
accountants with respect to the related Sub-Servicer.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, 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 its 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
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
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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 on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property within two years after REMIC I acquires ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than sixty days prior to the expiration of
such two year period, and 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 an Opinion of Counsel, addressed to the Trustee, the Special
Servicer and the Master Servicer, to the effect that the holding by REMIC I of
such REO Property subsequent to the second anniversary of such acquisition will
not result in the imposition of taxes on "prohibited transactions" (as defined
in Section 860F of the Code) of any of REMIC I, REMIC II or REMIC III or cause
either of REMIC I, REMIC II or REMIC III 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 period longer than two years 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 applying for and being granted
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) 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 and maintain one or more accounts
(collectively, the "REO Account"), 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. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of an REO Property. Funds in the REO Account may be
invested in Permitted Investments in accordance with Section 3.06. The Special
Servicer shall be entitled to make withdrawals from the REO Account to pay
itself, as additional servicing compensation in accordance with Section 3.11(d),
interest and investment income earned in respect of amounts held in the REO
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
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, maintenance and
disposition of any REO
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Property, but only to the extent of amounts on deposit in the REO Account
relating to such REO Property (including any monthly reserve or escrow amounts
necessary to accumulate sufficient funds for taxes, insurance and anticipated
capital expenditures (the "Impound Reserve")). On each Determination Date, the
Special Servicer shall withdraw from the REO Account and deposit into the
Certificate Account or deliver to the Master Servicer (which shall deposit such
amounts 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 that in addition to the Impound Reserve the Special Servicer
may retain in the REO Account such portion of proceeds and collections as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management and maintenance of the related REO Property (including without
limitation the creation of a reasonable reserve for repairs, replacements and
other related expenses), such reserve not to exceed $10,000 with respect to each
such REO Property or to cover a period of more than twelve months.
(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). The Special Servicer shall provide the Master Servicer any information
with respect to the REO Account as is reasonably requested by the Master
Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property,
the Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC
Provisions or would be subject to the tax imposed on
"prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), such
Mortgaged Property may be Directly Operated by the Special
Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an
REO Property could result in income from such property that
would be subject to an REO Tax, but that a lease of such
property to another party to operate such property, or the
performance of some services by an Independent Contractor with
respect to such property, or another method of operating such
property would not result in income subject to an REO Tax,
then the Special Servicer may (provided, that in the good
faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO
Property and so lease or operate such REO Property; or
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(iii) It is reasonable to believe that Directly
Operating such property as REO Property could result in income
subject to an REO Tax and that no commercially reasonable
feasible means exists to operate such property as REO Property
without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall
give written notice to the REMIC Administrator summarizing a
proposed plan ("Proposed Plan") to manage such property as REO
Property. Such notice shall include potential sources of
income, and to the extent reasonably feasible, estimates of
the amount of income from each such source. Within a
reasonable period of time after receipt of such notice, the
REMIC Administrator shall consult with the Special Servicer
and shall advise the Special Servicer of the REMIC
Administrator's federal income tax reporting position with
respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. In addition, the REMIC
Administrator shall (to the extent feasible) advise the
Special Servicer of the estimated amount of taxes, if any,
that the Trust Fund would be required to pay with respect to
each such source of income. After receiving the information
described in the two preceding sentences from the REMIC
Administrator, the Special Servicer shall either (A) implement
the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage and operate such
property in a manner that would not result in the imposition
of an REO Tax on the income derived from such property. The
Special Servicer's decision as to how each REO Property shall
be managed and operated shall be based in either case on the
good faith and reasonable judgment of the Special Servicer as
to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially
feasible) the net after-tax REO Revenues received by the Trust
Fund with respect to such property and, to the extent
consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers and asset managers operating
acquired mortgaged property comparable to the respective
Mortgaged Property. Both the Special Servicer and the REMIC
Administrator may consult with counsel at the expense of the
Trust Fund in connection with determinations required under
this Section 3.17(a). Neither the Special Servicer nor the
REMIC Administrator shall be liable to the Certificateholders,
the Trust Fund, the Trustee, the Master Servicer or each other
for errors in judgment made in good faith in the exercise of
their discretion while performing their respective
responsibilities under this Section 3.17(a). Nothing in this
Section 3.17(a) is intended to prevent the sale of a Defaulted
Mortgage Loan pursuant to the terms and subject to the
conditions of Section 3.18.
(b) Subject to Section 3.17(a)(iii), if title to any REO
Property is acquired, the Special Servicer shall manage, conserve, protect and
operate such REO Property for the benefit of the Certificateholders solely for
the purpose of its prompt 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 non-permitted assets" within the
meaning of
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Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Except as
provided in Section 3.17(a), the Special Servicer shall not enter into any
lease, contract or other agreement that causes REMIC I to receive, and (unless
required to do so under any lease, contract or agreement to which the Special
Servicer or the Trust Fund may become a party or successor to a party due to a
foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Mortgage Loan) shall not cause
or allow REMIC I to receive, any "net income from foreclosure property" that is
subject to taxation under the REMIC Provisions. 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 consistent with the Servicing Standard
and, consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management 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; and
(iv) all costs and expenses necessary to maintain,
lease, sell, protect, manage, operate and restore 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 Special Servicer shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officers' Certificate delivered to the Trustee and the Master Servicer)
the Special Servicer would not make such advances if the Special Servicer owned
such REO Property or the Special Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, 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 expenses of the Trust Fund) shall be reasonable and
customary in consideration of the nature and locality of the
REO Property;
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(iii) permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require,
that the Independent Contractor, in a timely manner, (A) pay
all costs and expenses incurred in connection with the
operation and management of such REO Property, including,
without limitation, those listed in Section 3.17(b) above, and
(B) except to the extent that such revenues are derived from
any services rendered by the Independent Contractor to tenants
of the REO Property that are not customarily furnished or
rendered in connection with the rental of real property
(within the meaning of Section 1.85b-6(b)(5) of the Treasury
Regulations or any successor provision), remit all related
revenues collected (net of its fees and such costs and
expenses) to the Special Servicer upon receipt;
(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 by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee
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(a) and 9.01.
(b) Subject to Section 2.03(a), if the Special Servicer has
determined in good faith that any Defaulted Mortgage Loan will become subject to
foreclosure proceedings, the Special Servicer shall promptly so notify in
writing the Trustee and the Master Servicer, and the Trustee, following its
receipt of such notice, shall, within 10 days after receipt of such notice,
notify the Majority Subordinate Certificateholder. The Majority Subordinate
Certificateholder may at its option purchase from the Trust Fund, at a price
equal to the Purchase Price, any such Mortgage Loan. The Purchase Price for any
Mortgage Loan purchased under this paragraph (b) shall be deposited into the
Certificate Account, and the
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Custodian, upon receipt of an Officers' Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Majority Subordinate Certificateholder the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Majority Subordinate Certificateholder ownership of
such Mortgage Loan. In connection with any such purchase, the Special Servicer
shall deliver the related Servicing File to the Majority Subordinate
Certificateholder.
(c) If the Majority Subordinate Certificateholder has not
purchased any Defaulted Mortgage Loan within 30 days of its having received
notice in respect thereof pursuant to Section 3.18(b) above, either the Master
Servicer or the Special Servicer (with preference given to the Master Servicer)
may at its option purchase such Mortgage Loan from the Trust Fund, at a price
equal to the Purchase Price. The Purchase Price for any such Mortgage Loan
purchased under this paragraph (c) shall be deposited into the Certificate
Account, and the Custodian, upon receipt of an Officers' Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the Master Servicer or the Special Servicer, as
applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Master Servicer or
the Special Servicer, as applicable, the ownership of such Mortgage Loan. In
connection with any such purchase by the Master Servicer, the Special Servicer
shall deliver the related Servicing File to the Master Servicer.
(d) The Special Servicer may offer to sell any Defaulted
Mortgage Loan not otherwise purchased pursuant to Sections 3.18(b) and 3.18(c)
above, if and when the Special Servicer determines, consistent with the
Servicing Standard, that such a sale would be in the best economic interests of
the Trust Fund. Such offer shall be made in a commercially reasonable manner
(which, for purposes hereof, includes an offer to sell without representation or
warranty other than customary warranties of title and condition, if liability
for breach thereof is limited to recourse against the Trust Fund) for a period
of not less than 10 days. Unless the Special Servicer determines that acceptance
of any bid would not be in the best economic interests of the Trust Fund, the
Special Servicer shall accept the highest cash bid received from any Person that
constitutes a fair price for such Mortgage Loan. In the absence of any bid
determined as provided below to be fair, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09.
The Special Servicer shall use its best efforts 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). The
Special Servicer shall accept the first (and, if multiple bids are received
contemporaneously, highest) cash bid received from any Person that constitutes a
fair price for such REO Property. 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), the Special Servicer shall dispose
of such REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to
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maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master
Servicer not less than three Business Days' prior written notice of its
intention to sell any Mortgage Loan or REO Property pursuant to this Section
3.18(d). No Interested Person shall be obligated to submit a bid to purchase any
such Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither 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.
(e) 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(d), shall be determined by the Special Servicer (except as
otherwise provided below in this Section 3.18(e)). In determining whether any
bid received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Special Servicer shall be supplied with and
may rely on a narrative appraisal prepared at the expense of the Trust Fund by
an Independent Appraiser, retained by the Special Servicer, and who has a
minimum of five years of experience in the subject property type and market.
(The Special Servicer may rely on a certification of any bidder to the effect
that such bidder is not an Interested Person.) Such appraiser shall be selected
by the Special Servicer if the Special Servicer is not bidding with respect to a
Defaulted Mortgage Loan or REO Property and shall be selected by the Master
Servicer if the Special Servicer is bidding. (The Special Servicer shall not bid
with respect to a Defaulted Mortgage Loan or REO Property if the Master Servicer
has informed it that the Master Servicer intends to submit a bid.) Where any
Interested Person is among those bidding with respect to a Mortgage Loan or REO
Property, the Special Servicer shall require that all bids be submitted in
writing and be accompanied by a refundable deposit of cash in an amount equal to
5% of the bid amount. In determining whether any bid from a Person other than an
Interested Person or from an Interested Person other than the Special Servicer
constitutes a fair price for any such Mortgage Loan or REO Property, the Special
Servicer shall take into account (in addition to the results of any appraisal
described above and any appraisal that it may have obtained pursuant to Section
3.09(a)), and any 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 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 such
Mortgage Loan or REO Property shall in all cases be deemed a fair price.
Notwithstanding the other provisions of this Section 3.18 (but excluding a
purchase pursuant to Section 3.18(c)), no cash bid from the Master Servicer,
Special Servicer or any of their Affiliates thereof shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest bid received and at least two independent bids (not including the bid of
the Special Servicer or any Affiliate) have been received. In the event the bid
of the Special Servicer or any Affiliate is the only bid received or is the
higher of only two bids received, then additional bids shall be solicited. If an
additional bid or bids are received and the original bid of the Special Servicer
or any Affiliate
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is the highest of all bids received, then the bid of the Special Servicer or
such Affiliate shall be deemed to constitute a fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) 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. In connection therewith, the Special Servicer
may charge prospective bidders, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
Fund (other than warranty of title), 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.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
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).
(h) The Special Servicer shall not be obligated by any of the
foregoing paragraphs of this Section 3.18 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 addition, the Special Servicer may accept a lower bid if it determines, in
accordance with the Servicing Standard, that acceptance of such bid would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower bid is more likely to perform its obligations or the
terms offered by the prospective buyer making the lower bid are more favorable).
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 lesser of (i) the excess, if
any, of (A) aggregate amount of Prepayment Interest Shortfalls incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period over (B) the aggregate amount of Prepayment Interest Excesses
collected in connection with Principal Prepayments received during such
Collection Period, and (ii) the total amount of all servicing compensation
(excluding any amounts paid to the Special Servicer as a Sub-Servicer) received
by the Master Servicer during such Collection Period.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(g) below, the
Master Servicer or Special Servicer may, on behalf of the Trustee, agree to any
modification, waiver or
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amendment of any term of any Mortgage Loan that it is then required to service
and administer 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.
(c) Except as provided in Section 3.20(d) below, the Master
Servicer or Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan if such modification, waiver or amendment would:
(i) affect the amount or timing of any related
payment of principal, interest or other amount (including
Prepayment Premiums or Yield Maintenance Charges, but
excluding Penalty Interest and other amounts payable as
additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor
to pay a Prepayment Premium or Yield Maintenance Charge 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 Master Servicer or Special Servicer, as the
case may be, at the expense of the related Mortgagor and upon
which the Master Servicer or Special Servicer may conclusively
rely) of the property to be released; or
(iv) in the judgment of the Master Servicer or
Special Servicer, otherwise materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment
of amounts due thereon.
Notwithstanding any provision of this Agreement to the
contrary, neither the Master Servicer nor Special Servicer shall consent to,
make or permit (i) any modification with respect to any Mortgage Loan that would
change the Mortgage Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date of such Mortgage Loan unless, with respect to a Specially Serviced
Mortgage Loan, both (A) the related Mortgagor is in default with respect to the
Mortgage Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable and (B) in the sole good faith judgment of the Special
Servicer, such modification would increase the recovery on the Mortgage Loan to
Certificateholders on a present value basis (the relevant discounting of amounts
that will be distributable to Certificateholders to be performed at the related
Mortgage Rate) or (ii) any modification, waiver or amendment of any
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term of any Mortgage Loan that would both (A) effect an exchange or reissuance
of such Mortgage Loan under Section 1001 of the Code (or final, temporary or
proposed Treasury regulations promulgated thereunder with an effective date or
proposed effective date that applies or would apply to such waiver, modification
or amendment) and (B) cause the Trust Fund 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. If the Special
Servicer is the Holder, or an Affiliate of the Holder, of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class,
then the determination of the Special Servicer contemplated by clause (i)(B) of
the preceding sentence shall be evidenced by an Officer's Certificate to such
effect delivered to the Trustee, the Master Servicer and the Sub-Servicers and
describing in reasonable detail the basis for the Special Servicer's
determination.
(d) Subject to Section 3.20(b) above and the last paragraph of
Section 3.20(c) above, with respect to any Specially Serviced Mortgage Loan, the
Special Servicer may, on behalf of the Trustee, without the consent of the
Trustee or any Certificateholder (i) reduce the amounts owing under any Mortgage
Loan by forgiving principal and/or accrued interest, (ii) reduce the amount of
the Monthly Payment on any Mortgage Loan, including by way of a reduction in the
related Mortgage Rate, and/or (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage. However, the Special Servicer will
not be permitted to extend the date on which any Balloon Payment is scheduled to
be due unless the Special Servicer has obtained an appraisal of the related
Mortgaged Property, performed by an Independent Appraiser, in connection with
such extension, which appraisal supports the determination of the Special
Servicer contemplated by clause (i)(B) of the first sentence of the last
paragraph of Section 3.20(c). In no event shall the scheduled due date for a
Balloon Payment be extended for a period in excess of 36 months, without the
consent of the Extension Adviser pursuant to Section 3.24 herein, and no single
extension shall exceed a period of twelve months.
(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 Master Servicer's
or Special Servicer's ability to charge and collect from the Mortgagor such
costs 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 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 Master
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Servicer or 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, any
Sub-Servicers and the Trustee, 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.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan and if the Master Servicer is not
also the Special Servicer, the Master Servicer shall immediately give notice
thereof, and shall deliver the related Servicing File, to the Special Servicer
and shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) 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 without acting through a
Sub-Servicer. The Master Servicer shall use reasonable efforts to comply with
the preceding sentence within five Business Days of the occurrence of each
related Servicing Transfer Event.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Special Servicer shall immediately give notice thereof,
and shall return the related Servicing File within five Business Days of the
occurrence, to the Master Servicer and upon giving such notice, and returning
such Servicing File, to the Master Servicer, the Special Servicer's obligation
to service such Mortgage Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan, shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and copies of
any additional related Mortgage Loan information, including correspondence with
the related Mortgagor.
(c) On or before each Determination Date, the Special Servicer
shall deliver to the Master Servicer a statement in writing and in computer
readable format describing, on a loan-by-loan and property-by-property basis,
(1) insofar as it relates to Specially Serviced Mortgage Loans and REO
Properties, the information described in clauses (x) through (xiv) of Section
4.02(a) and, insofar as it relates to the Special Servicer, the information
described in
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clauses (xxv) and (xxvi) of Section 4.02(a), (2) the amount of all payments,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each Specially Serviced Mortgage Loan
during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Collection Period, and (4) such
additional information relating to the Specially Serviced Mortgage Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (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
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
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: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Master
Servicer or the Special Servicer, as the case may be, 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 may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such agreement or, alternatively, may terminate such subservicing
agreement without cause and without payment of any penalty or termination fee;
(iii) provides that the Trustee, for the benefit of the Certificateholders,
shall be a third party beneficiary under such agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Master
Servicer or the Special Servicer, as the case may be, thereunder as contemplated
by the immediately preceding clause (ii)) none of the Trustee, the Trust Fund,
any successor Master Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty, (v) does not permit the
Sub-Servicer to enter into or consent to any modification, waiver or amendment
or otherwise take any action on behalf of the Special Servicer contemplated by
Section 3.20 hereof without the consent of such Special Servicer, and (vi) does
not permit the Sub-Servicer any rights of indemnification that may be satisfied
out of assets of the Trust Fund. In addition, each Sub-Servicing Agreement
entered into by the Master Servicer shall provide that such agreement 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
and the Special Servicer each shall deliver to
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the Trustee and to each other copies of all 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 or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make P&I Advances or
Servicing Advances shall be deemed to have been advanced by the Master Servicer
or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such P&I Advances or Servicing 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 or the Special Servicer, as the case may
be. For so long as they are outstanding, Advances shall accrue interest in
accordance with Sections 3.03(d) and 4.03(d), such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) 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, and
(ii) shall be an approved conventional seller/servicer of mortgage loans for
FHLMC or FNMA or a HUD-Approved Servicer.
(c) The Master Servicer and the 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 their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of 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 or the Special Servicer, as applicable, in its good
faith business judgment, would require were it the owner of the Mortgage Loans.
Subject to the terms of the related Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each have the right to remove a Sub-Servicer
retained by it at any time it considers such removal to be in the best interests
of Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to
serve as such under this Agreement for any reason (including by reason of an
Event of Default) and no successor Master Servicer or Special Servicer, as the
case may be, has succeeded to its rights and assumed its obligations hereunder
or, in the case of the Special Servicer, no replacement Special Servicer has
been designated pursuant to Section 6.09, then the Trustee or its designee shall
succeed to the rights and assume the obligations of the Master Servicer or the
Special Servicer under any Sub-Servicing Agreement, unless the Trustee elects to
terminate any such Sub-Servicing Agreement in accordance with its terms. In any
event, if a Sub-Servicing
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Agreement is to be assumed by the Trustee or another successor thereto, the
Master Servicer or the Special Servicer, as applicable, at its expense shall,
upon request of the Trustee, deliver to the assuming party all documents and
records relating to such 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 its best efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of their respective
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 each
alone were servicing and administering the Mortgage Loans or REO Properties for
which it is responsible.
SECTION 3.23. Representations and Warranties of Master
Servicer and Special Servicer.
(a) The Master Servicer, in such capacity, 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 corporation, duly
organized 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 articles of incorporation or
by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable
to it or any of its assets.
(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 each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Master Servicer, enforceable against the Master 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,
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and (B) 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 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 Master
Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the
Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened, against the Master
Servicer that 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, employee, consultant or
advisor of the Master Servicer with responsibilities
concerning the servicing and administration of Mortgage Loans
is covered by errors and omissions insurance in the amounts
and with the coverage as, and to the extent, required by
Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in
the case of the initial Master Servicer, the consolidated net
worth thereof and of its direct or indirect parent),
determined in accordance with generally accepted accounting
principles, is not less than $15,000,000.
(ix) Any consent, approval, authorization or order of
any court or governmental agency or body required for the
execution, delivery and performance by the Master Servicer of
or compliance by the Master Servicer with this Agreement or
the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
(b) The Special Servicer, in such capacity, 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 Texas corporation,
validly existing and in good standing under the laws of the
State of Texas, 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.
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(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 certificate of incorporation 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) 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
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 Master
Servicer that 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 and employee of the
Special Servicer and each consultant or advisor of the Special
Servicer with 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).
(viii) Any consent, approval, authorization or order
of any court or governmental agency or body required for the
execution, delivery and performance by the Special Servicer of
or compliance by the Special Servicer with this
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Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is
effective.
(c) The representations and warranties of the Master Servicer
and the Special Servicer, set forth in Sections 3.23(a) and (b), respectively,
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.
SECTION 3.24. Duties of Extension Adviser.
(a) The Special Servicer may not extend the maturity of any
Specially Serviced Mortgage Loan beyond the third anniversary of such Mortgage
Loan's then stated maturity date, unless the Extension Adviser elected pursuant
to Section 3.25 shall have approved such extension in writing within ten days
after receiving from the Special Servicer written notice thereof and sufficient
information to make an informed decision. If a written objection to such
extension from the Extension Adviser has not been received by the Special
Servicer within said ten-day period, then the Extension Adviser's approval shall
be deemed to have been given. In addition, the Extension Adviser shall confirm,
to its reasonable satisfaction, that all conditions precedent to the granting of
any such extension set forth in this Agreement have been satisfied.
(b) The Special Servicer shall, with respect to any proposed
extension of a Balloon Payment with respect to a Specially Serviced Mortgage
Loan for a period in excess of 36 months, prepare and deliver to the Extension
Adviser, a summary of such proposed action and an analysis of whether such
action is reasonably likely to produce a greater recovery of collections on a
present value basis (the relevant discounting to be performed at the related Net
Mortgage Rate) than liquidation of such Mortgage Loan. Such analysis shall
specify the basis on which the Special Servicer has made such determination,
including the status of any existing material default or the grounds for
concluding that a payment default is imminent.
(c) All correspondence and communications with the Extension
Adviser may be conducted with the officers or employees of Extension Adviser
whose names appear on a list of officers or employees furnished to the Special
Servicer by the Extension Adviser, as such list may from time to time be
amended.
SECTION 3.25. Election of Extension Adviser.
(a) The Holder or Holders of 51% or more of the aggregate
Certificate Principal Balance of the Registered Certificates will be entitled to
elect a representative (the "Extension Adviser") as provided in this Section
3.25. Upon (i) the receipt by the Trustee of a written request for an election
of an Extension Adviser by the Special Servicer in the event that no Extension
Adviser has been previously elected pursuant to this Section and the maturity of
a Specially Serviced Mortgage Loan has been extended beyond its second
anniversary, (ii) the receipt by the Trustee of written requests for an election
of an Extension Adviser from
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Certificateholders representing more than 51% of the aggregate Certificate
Principal Balance of all the Registered Certificates, or (iii) the resignation
or removal of the Person acting as Extension Adviser, an election of a successor
Extension Adviser shall be held commencing as soon as practicable thereafter.
(b) After any such receipt, resignation, removal or
determination contemplated by Section 3.25(a), the Trustee shall call a meeting
of the Holders of all Registered Certificates, if any, for the purpose of
electing an Extension Adviser. Notice of any such meeting of such Holders shall
be mailed or delivered to each Holder not less than 10 days nor more than 60
days prior to the meeting. The notice shall state the place and the time of the
meeting, which may be held by telephone. Certificateholders representing a
majority (by Certificate Principal Balance) of the Certificates of the
applicable Class or Classes, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Extension Adviser. At the meeting,
each such Holder shall be entitled to nominate one Person to act as Extension
Adviser. The Trustee shall cause the election of the Extension Adviser to be
held as soon thereafter as convenient.
(c) Each Holder of Registered Certificates shall be entitled
to vote in each election of the Extension Adviser. The voting in each election
of the Extension Adviser, as the case may be, shall be in writing mailed,
delivered or sent by courier and actually received by the Trustee on or prior to
the date of such election. Immediately upon a determination by the Trustee that
it has received votes (which have not been rescinded) from the Holders of
Certificates representing 51% or more of the aggregate Certificate Principal
Balance of all the Registered Certificates, which votes are cast for a single
Person, such Person shall be, upon such Person's acceptance, the Extension
Adviser. In the event that the applicable Certificateholders have not elected an
Extension Adviser or that an Extension Adviser shall have resigned or been
removed and a successor Extension Adviser shall not have been elected, there
shall be no Extension Adviser. Notwithstanding anything to the contrary
contained herein, the Special Servicer shall not have any right to extend the
maturity of any Specially Serviced Mortgage Loan which would require the
approval of an Extension Adviser nor shall the Special Servicer have any right
or obligation to consult with or to seek and/or obtain approval or direction
from an Extension Adviser, and provisions of this Agreement relating thereto
shall be of no effect, in any event during any such period that there is no
Extension Advisor, as applicable. As to each Specially Serviced Mortgage Loan
that is considered by the Extension Adviser for extension pursuant to Section
3.24 hereof, the Extension Adviser's fee shall not exceed $1000 for each
extension of a Mortgage Loan on which the Extension Adviser actually advises the
Special Servicer.
(d) The Extension Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of Holders of
Certificates representing 51% or more of the aggregate Certificate Principal
Balance of all the Registered Certificates.
(e) Upon election of a successor Extension Adviser, the
Trustee shall promptly mail notice thereof by first class mail to the Depositor,
the Master Servicer, the Special Servicer, the Mortgage Loan Sellers and each of
the Rating Agencies.
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SECTION 3.26. Limitation on Liability of Extension Adviser.
The Extension Adviser will be acting solely as a
representative of the interests of the Class of Certificateholders that have
elected such adviser and with its primary duty to act in accordance with Section
3.24(b), the Extension Adviser shall not have any responsibility or liability to
the Trust or any other Class of Certificateholders for any action taken, or for
refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Extension Adviser against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
or duties hereunder.
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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 Section 3.05(b)(ii) through (vi), 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 and the Class IO Certificates, in an
amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of
Senior Certificates and the Class IO Certificates for such
Distribution Date and, to the extent not previously paid, for
all prior Distribution Dates;
(ii) to distributions of principal to the holders of
the Class A-PO Certificates with respect to each Discount
Mortgage Loan, in an amount (not to exceed the Class Principal
Balance of the Class A-PO Certificates outstanding immediately
prior to such Distribution Date) equal to: (x) a portion of
each payment of or in respect of principal on such Discount
Mortgage Loan equal to the amount of such payment multiplied
by the Class A-PO Fraction and (y) the product of the Class
A-PO Fraction for such Discount Mortgage Loan and any Realized
Losses and Additional Trust Fund Expenses with respect to the
related Discount Mortgage Loan that were realized during the
related Collection Period, to the extent such Realized Losses
and Additional Trust Fund Expenses have not been allocated to
the Class A-PO Certificates pursuant to Section 4.04 herein;
(iii) 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;
(iv) if 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);
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(v) if the Class Principal Balances of the Class A-1
Certificates and Class A-2 Certificates have been reduced to
zero, to distributions of principal to the Holders of the
Class A-3 Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-3 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);
(vi) to distributions to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3
Certificates and the Class A-PO Certificates, pro rata, in
accordance with the outstanding Certificate Principal Balances
of such Classes 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;
(vii) 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;
(viii) if the Class Principal Balances of the Class
A-1 Certificates, the Class A-2 Certificates and the Class A-3
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 clause (ii) above);
(ix) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of,
all Appraisal Reduction Amount Shortfalls and Realized Losses
and Additional Trust Fund Expenses, if any, previously
allocated to the Class B Certificates and not previously
reimbursed;
(x) 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 of
Certificates for such Distribution Date, and, to the extent
not previously paid, for all prior Distribution Dates;
(xi) if 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)
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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);
(xii) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of,
all Appraisal Reduction Amount Shortfalls and Realized Losses
and Additional Trust Fund Expenses, if any, previously
allocated to the Class C Certificates and not previously
reimbursed;
(xiii) 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;
(xiv) if 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);
(xv) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of,
all Appraisal Reduction Amount Shortfalls and Realized Losses
and Additional Trust Fund Expenses, if any, previously
allocated to the Class D Certificates and not previously
reimbursed;
(xvi) 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;
(xvii) if 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);
(xviii) to distributions to the Holders of the Class
E Certificates, in an amount equal to, and in reimbursement
of, all Appraisal Reduction Amount Shortfalls and Realized
Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class E Certificates and not previously
reimbursed;
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(xix) 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;
(xx) if 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);
(xxi) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of,
all Appraisal Reduction Amount Shortfalls and Realized Losses
and Additional Trust Fund Expenses, if any, previously
allocated to the Class F Certificates and not previously
reimbursed;
(xxii) 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;
(xxiii) if 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 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);
(xxiv) to distributions to the Holders of the Class G
Certificates and Class IO Certificates, in that order, in an
amount equal to, and in reimbursement of, all Appraisal
Reduction Amount Shortfalls and Realized Losses and Additional
Trust Fund Expenses, if any, previously allocated to each such
Class of Certificates and not previously reimbursed; and
(xxv) to distributions to the Holders of the Class
R-I 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 clauses (i) through (xxiv)
above.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
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Notwithstanding the priority of distributions set forth in this Section
4.01(a), if, on any Distribution Date, (i) the Class C Certificates have been
retired or (ii) the Class G, Class F and Class E Certificates have been reduced
to zero by any Realized Losses and Additional Trust Fund Expenses, then the
holders of the Class A-PO Certificates will be entitled to distributions of
principal in an amount (not to exceed the Class Principal Balance of the Class
A-PO Certificates outstanding immediately prior to such Distribution Date) equal
to the Principal Distribution Amount for such Distribution Date until the Class
A-PO Certificates have been reduced to zero.
(b) On each Distribution Date, the Paying Agent shall apply
any amounts that represent Prepayment Premiums and/or Yield Maintenance Charges
actually collected on the Mortgage Loans and any REO Loans during the related
Collection Period and shall distribute the entire amount of such withdrawal, as
additional interest, as follows:
(i) With respect to any Prepayment Premiums:
until the Certificate Principal Balance(s) of the
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E,
Class F and Class G Certificates have been reduced to zero, to the
Holders of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class
D, Class E, Class F and Class G Certificates, in the case of each such
Class in an amount equal to the product of (1) the related Class
Prepayment Percentage for such Distribution Date, multiplied by (2) 40%
of the total amount of each such Prepayment Premium collected, and to
the Holders of the Class IO Certificates, the remaining amount of each
such Prepayment Premium.
(ii) With respect to any Yield Maintenance Charge collected:
until the Certificate Principal Balances of the Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F
and Class G Certificates have been reduced to zero, (x) to Holders of
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E,
Class F and Class G Certificates, in the case of each such Class, an
amount equal to the product of (1) a fraction (not greater than one and
not less than zero), the numerator of which is the respective
Pass-Through Rate of such Class, reduced by the discount rate used in
calculating such Yield Maintenance Charge and the denominator of which
is the Mortgage Rate of the applicable Mortgage Loan, less such
discount rate, multiplied by (2) the applicable Class Prepayment
Percentage, multiplied by (3) the amount of such Yield Maintenance
Charge, and (y) to the Holders of the Class IO Certificates, an amount
equal to the remaining portion of such Yield Maintenance Charge for
such Distribution Date.
(c) All distributions made with respect to each Class 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
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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 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) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000 or initial Component Notional Amount of
which is at least $10,000,000, 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 distribute the unclaimed
funds to the Class R-III Certificateholder.
(d) 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, a copy of which
Letter of Representations is attached hereto as Exhibit F.
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(e) 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 to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(f) 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 Appraisal Reduction Amount Shortfalls, 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 270th day following delivery of
the second notice, the Paying Agent shall distribute to the Class R-III
Certificateholder all unclaimed funds and other assets which remain subject
thereto.
(g) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to
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Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for 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.
(h) All distributions made in respect of any Class of
Certificates (other than the Class IO Certificates) on each Distribution Date
pursuant to Section 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 set forth in the Preliminary Statement hereto; all interest
distributions made in respect of the Class IO Certificates on each Distribution
Date pursuant to Section 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 REMIC II Regular
Interests as follows: in the case of interest which has accrued on Component
IO-1, such amounts shall be deemed to have first been distributed to REMIC II
Regular Interest S, T, U, V, W, X and Y to the extent of one month's interest
accrued at a rate equal to the Weighted Average Effective REMIC I Remittance
Rate minus 7.42% on the Uncertificated Principal Balance of REMIC II Regular
Interest S, T, U, V, W, X, Y and Z outstanding immediately prior to such
Distribution Date; in the case of interest which has accrued on Component IO-2,
such amounts shall be deemed to have first been distributed to REMIC II Regular
Interest S, to the extent of one month's interest accrued at the rate of 0.27%
per annum on the Uncertificated Principal Balance of REMIC II Regular Interest S
outstanding immediately prior to such Distribution Date; and in the case of
interest which has accrued on Component IO-3 such amounts shall be deemed to
have first been distributed to REMIC Regular Interest T, to the extent of one
month's interest accrued at the rate of 0.18% per annum on the Uncertificated
Principal Balance of REMIC II Regular Interest T outstanding immediately prior
to such Distribution Date; in each case calculated on the basis of a 360-day
year consisting of twelve 30-day months. In each case, if such distribution on
any such Class of Certificates was a distribution of interest, of principal, of
Prepayment Premiums, Yield Maintenance Charges or in reimbursement of previously
allocated Appraisal Reduction Amount Shortfalls, Realized Losses and Additional
Trust Fund Expenses in respect of such Class of Certificates, then the
corresponding distribution deemed to be made on the related REMIC II Regular
Interest pursuant to the preceding sentence shall be deemed to also be a
distribution of interest, of principal, of Prepayment Premiums or in
reimbursement of previously allocated Realized Losses and Additional Trust Fund
Expenses, as the case may be, in respect of such REMIC II Regular Interest.
(i) On each Distribution Date, the portion of the Available
Distribution Amount for such date distributed in respect of the Regular
Certificates pursuant to Section 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:
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(i) as deemed distributions of interest in respect of
the REMIC I Regular Interests (other than the REMIC I Regular
PO 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) with respect to the REMIC I Regular PO Interests
an amount equal to the distribution of principal to be paid on
such Distribution Date to the holders of the Class A-PO
Certificates pursuant to Section 4.01(a)(ii) hereof.
(iii) as deemed distributions of principal in respect
of the REMIC I Regular Interests (other than the REMIC I
Regular PO 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 (as
reduced by any Discount Mortgage Loan PO Strip) of the related
Mortgage Loan (or Successor REO Loan) that will be outstanding
immediately following such Distribution Date; and
(iv) as distributions in respect of the REMIC I
Regular Interests, in reimbursement of previously allocated
Realized Losses and Additional Trust Fund Expenses (with
compounded interest), allocated to the related Mortgage Loan
Regular Interest.
SECTION 4.02. Statements to Certificateholders;
Collection Reports.
(a) On each Distribution Date, the Paying Agent shall forward
by mail, not facsimile, to the Trustee, the Depositor and all of the Holders of
each Class of Regular Certificates (a list of which shall be provided to the
Paying Agent on the Closing Date substantially in the form set forth on Exhibit
L hereto), a statement (a "Distribution Date Statement") as to the distributions
made on such Distribution Date, based on information provided to it by the
Master Servicer and the Special Servicer, setting forth:
(i) the amount of the distribution on such
Distribution Date to the Holders of such 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 such Class of Regular
Certificates allocable to Distributable Certificate Interest;
(iii) the amount of the distribution on such
Distribution Date to the Holders of such Class of Regular
Certificates allocable to Prepayment Premiums and Yield
Maintenance Charges;
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(iv) the amount of the distribution on such
Distribution Date to the Holders of such 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),
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
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 and Nonrecoverable 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 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;
(x) the number, aggregate unpaid 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
one month, (B) delinquent two months, (C) delinquent three or
more months, and (D) as to which foreclosure proceedings have
been commenced;
(xi) as to each Mortgage Loan referred to in the
preceding clause (x) above, (A) the loan number thereof, (B)
the Stated Principal Balance thereof immediately following
such Distribution Date, (C) whether the delinquency is in
respect of its Balloon Payment, (D) whether a notice of
acceleration has been sent to the Mortgagor and, if so, the
date of such notice, (E) if a Phase I Environmental Assessment
of the related Mortgaged Property has been performed as
contemplated by Section 3.09(c) and the assessment is such
that the Special Servicer cannot make the determination set
forth in clauses (A)(i) and (A)(ii) of the first sentence of
Section 3.09(c), a brief description of the results of such
Phase I Environmental Assessment, and (F) a brief description
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of the status of any foreclosure proceedings or any workout or
loan modification negotiations with the related Mortgagor;
(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 nature of the Liquidation Event and, in the
case of a Final Recovery Determination, a brief description of
the basis for such Final Recovery Determination, (C) 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 (D) 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. ss. 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 (separately identifying the portion thereof allocable
to distributions on the Certificates), (E) the Stated
Principal Balance of the related REO Loan immediately
following such Distribution Date, and (F) a brief description
of the Special Servicer's efforts since the last Distribution
Date to stabilize the tenancy of such REO Property, to repair
and restore such REO Property to marketable condition and to
sell such REO Property at its then current fair market value;
(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 (separately
identifying the portion thereof allocable to distributions on
the Certificates), and (D) 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 such Class of
Regular Certificates for such Distribution Date;
(xvi) any unpaid Distributable Certificate Interest
in respect of such Class of Regular Certificates after giving
effect to the distributions made on such Distribution Date;
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(xvii) the Pass-Through Rate for such 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 of all Realized Losses incurred
during the related Collection Period and, aggregated by type,
all Additional Trust Fund Expenses incurred during the related
Collection Period;
(xx) the aggregate of all Appraisal Reduction
Amounts, Realized Losses and Additional Trust Fund Expenses
that remain unallocated immediately following 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;
(xxii) the Certificate Factor for each Class of
Regular Certificates immediately following such Distribution
Date;
(xxiii) the aggregate amount of interest on P&I
Advances paid to the Master Servicer 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 and the Special Servicer
during the related Collection Period in accordance with
Section 3.03(d);
(xxv) (A) the aggregate amount of servicing
compensation (separately identifying the amount of each
category of compensation) paid to the Master Servicer, the
Special Servicer and, if payable directly out of the Trust
Fund without a reduction in the servicing compensation
otherwise payable to the Master Servicer or the Special
Servicer, to each Sub-Servicer, during the related Collection
Period, and (B) such other information as the Trustee is
required by the Code or other applicable law to furnish to
enable Certificateholders to prepare their tax returns; and
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(xxvi) a brief description of any waiver,
modification or amendment of the terms of any Mortgage Loan
entered into by the Special Servicer pursuant to Section 3.20
during the related Collection Period.
Each Distribution Date Statement shall be accompanied by the corresponding
Collection Report and Updated Mortgage Loan Schedule and, insofar as any of the
information to be provided pursuant to clauses (i) through (xxvi) above is
adequately reflected in such Collection Report or Updated Mortgage Loan
Schedule, such information need not be repeated in the Distribution Date
Statement provided that the Paying Agent shall only be obligated to deliver such
Collection Reports and Updated Mortgage Loan Schedules to the extent such
documents are delivered to it by the Master Servicer and Special Servicer in
accordance with Section 4.02(b); and provided further that notwithstanding the
fact that any of the Registered Certificates are held in the name of the
Depository or its nominee, the Paying Agent shall be required on each
Distribution Date to deliver the related Distribution Date Statement and
corresponding Collection Report and Updated Mortgage Loan Schedule to each
holder of Registered Certificates set forth on Exhibit L hereto. In addition,
each such Distribution Date Statement, Collection Report and Updated Mortgage
Loan Schedule, as applicable, shall refer to the Mortgage Loan Number for each
Mortgage Loan set forth on Exhibit B hereto.
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 Paying Agent by the
Master Servicer as a basis for information to be furnished pursuant to clauses
(x) through (xiv), (xxv) and (xxvi) above, insofar as the underlying information
is solely within the control of the Special Servicer, the Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer.
Within a reasonable period of time after the end of each
calendar year, the Paying Agent shall furnish to each Person who at any time
during the calendar year was a Holder of a Regular Certificate a statement
containing the information set forth in clauses (i) through (iv) above as to the
applicable Class, aggregated for the portion of such calendar year that such
Person was a Holder. Such obligation of the Paying Agent shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided by the REMIC Administrator pursuant to any requirements of the Code as
from time to time are in force.
On each Distribution Date, the Paying Agent shall forward to
the Depositor, to each Rating Agency, to each Holder of a Residual Certificate,
to Merrill Lynch & Co. (at 101 Hudson Street, 12th Floor, Jersey City, New
Jersey 07302-3997, Attention: P&I Dept., or such other address as Merrill Lynch
& Co. may hereafter designate), to First Union (at One First Union Center, 301
South College Street, Charlotte, North Carolina 28200, Attention: P&I/Servicing
Dept., or such other address as First Union may hereafter designate) and, in the
case of reports regarding the respective Classes of Book-Entry Certificates, 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 forwarded to the
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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 and Class R-II Certificates on such Distribution Date.
Within a reasonable period of time after the end of each
calendar year, the Paying Agent shall furnish to each Person who at any time
during the calendar year was a Holder of a Residual Certificate a statement
containing the information provided pursuant to the previous paragraph in
respect of distributions on each Class of Residual Certificates and pursuant to
clauses (i) through (iv) above in respect of distributions on each Class of
Regular Certificates, aggregated for the portion of such calendar year that such
Person was a Holder. Such obligation of the Paying Agent shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided by the Paying Agent pursuant to any requirements of the Code as from
time to time are in force.
Upon written request of the Depositor or either Underwriter,
without payment of any fee, and upon written request of any Certificateholders
or any other Person, together with payment of a fee specified by the Paying
Agent, the Paying Agent shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) on computer diskette to such party (such
computer diskette and such statements, reports, and/or information thereon to
bear such appropriate disclaimers and qualifications as the Depositor and the
Paying Agent shall determine in their reasonable discretion).
The Paying Agent 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 Master Servicer
and the Special Servicer and shall not be liable for any failure to deliver any
thereof on the prescribed due dates, to the extent caused by failure to receive
timely such underlying information. Nothing herein shall obligate the Trustee 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 the fourth Business Day following each
Determination Date, the Master Servicer shall furnish to the Paying Agent and
the Depositor (for receipt by each not later than such fourth Business Day
following each Determination Date), by electronic transmission (or in such other
form to which the Paying Agent or the Depositor, as the case may be, and the
Master Servicer may agree), with a hard copy of such transmitted information to
follow not later than the fifth Business Day following such Determination Date,
an accurate and complete Collection Report with respect to the related
Distribution Date containing the following information (but only if and to the
extent such information is not already adequately reflected in the corresponding
Updated Mortgage Loan Schedule delivered by the Master Servicer to the Paying
Agent pursuant to Section 3.12(c)):
(i) with respect to each Mortgage Loan (and any
successor REO Loan) that was included in the Trust Fund as of
the commencement of the Collection Period ending on such
Determination Date, (A) the Master Servicer
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loan number thereof, (B) the Mortgage Rate and Net Mortgage
Rate in effect as of the commencement of such Collection
Period, (C) the Stated Principal Balance outstanding
immediately before and expected to be outstanding immediately
after the related Distribution Date, (D) the date on which the
final payment is scheduled to be due, (E) the amount of the
Monthly Payment due on the Due Date in such Collection Period,
(F) all related payment and/or collection activity since the
preceding Collection Report (or, in the case of the initial
Collection Report, since the Closing Date) relevant to the
Paying Agent's calculations of amounts to be distributed on
the Certificates on the related Distribution Date and the
application of such amounts in accordance with Section 3.02(b)
(or the definition of "REO Loan"), (G) the delinquency status
as of the end of such Collection Period, (H) in the case of an
REO Loan, the date of acquisition of the related REO Property
by the Trust Fund and the book value (within the meaning of 12
C.F.R. ss.571.13) of such REO Property, (I) whether a
Liquidation Event occurred during such Collection Period and,
if so, a brief description thereof, and (J) the amount of any
loss incurred during such Collection Period;
(ii) the information to be provided to
Certificateholders on the related Distribution Date pursuant
to clauses (v), (vi), (x)-(xiv), (xxv)(A), and (xxvi) of
Section 4.02(a);
(iii) the aggregate amount of the Prepayment Premiums
and Yield Maintenance Charges received during such Collection
Period;
(iv) any information supplemental hereto with respect
to the Mortgage Loans that is reasonably required by the
Paying Agent;
(v) such other information regarding the Mortgage
Assets and any REO Properties as the Paying Agent may
reasonably request to perform its duties hereunder; and
(vi) to the extent the Depositor or any
Certificateholder requests additional information not required
pursuant to the terms of this Agreement, the Paying Agent may
request such information in order to deliver the same to the
Depositor or such Certificateholder on the Distribution Date
following the Depositor's or such Certificateholder's
reasonable request therefor, 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.
Pursuant to its obligations set forth in Section 4.05, the
Paying Agent may conclusively rely on the Collection Reports and Updated
Mortgage Loan Schedules provided to it by the Master Servicer or the Special
Servicer, and the Paying Agent shall not be responsible to recompute,
recalculate or verify the information provided to it by the Master
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Servicer or the Special 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 and may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer.
The Special Servicer shall provide to the Master Servicer the information set
forth in Section 4.02(b)(i) and Section 4.02(a)(x-xiv) and (xxvi) with respect
to any Specially Serviced Mortgage Loan and REO Loan serviced by it as of the
Due Date for the related Collection Report.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each P&I
Advance Date, the Master Servicer shall either (i), 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, (ii) apply amounts
held in the Certificate Account for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances, or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
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 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 the Master Servicer does
not deposit in the Distribution Account, on or before 4:00 p.m. New York City
time, on any P&I Advance Date, the full amount of P&I Advances, if any, required
to be made in respect of the related Distribution Date, then the provisions of
Sections 7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the aggregate of all Scheduled Payments (other than Balloon
Payments) and any Assumed Scheduled Payments, net of related Master Servicing
Fees, Special Servicing Fees, any Master Servicer Strip and any related
Principal Recovery Fees, due or deemed due, as the case may be, in respect of
the Mortgage Loans (including, without limitation, Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected as of the close of business on the related Determination
Date; provided that, (i) if the Monthly Payment on any Mortgage Loan has been
reduced 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, or if the final maturity on any
Mortgage Loan shall be extended 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
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Servicer pursuant to Section 3.20, and the Monthly Payment due and owing during
the extension period is less than the related Assumed Scheduled Payment, then
the Master Servicer shall, as to such Mortgage Loan only, advance only the
amount of the Monthly Payment due and owing after taking into account such
reduction (net of related Master Servicing Fees, Master Servicer Strip, Special
Servicing Fees and any related Principal Recovery Fees) in the event of
subsequent delinquencies thereon; (ii) if it is determined that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, then, with
respect to the Distribution Date immediately following the date of such
determination and with respect to each subsequent Distribution Date for so long
as such Appraisal Reduction Amount exists, the Master Servicer will be required
in the event of subsequent delinquencies to advance in respect of such Mortgage
Loan only an amount equal to the product of (i) the amount of the P&I Advance
that would otherwise be required without regard to this sentence, multiplied by
(ii) a fraction, the numerator of which is equal to the Stated Principal Balance
of such Mortgage Loan, net of such Appraisal Reduction Amount, and the
denominator of which is equal to the Stated Principal Balance of such Mortgage
Loan; and (iii) provided further that, if the date on which any Balloon Payment
is scheduled to be due on any Mortgage Loan is extended by the Special Servicer
in accordance with Section 3.20 and the Loan-to-Value Ratio for such Mortgage
Loan at the time of such extension is in excess of 100%, then (unless the Class
A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the
Class A-PO Certificates are collectively the Controlling Class or such Mortgage
Loan becomes a Required Appraisal Loan) the interest portion of any P&I Advance
that would otherwise be made in respect of such Mortgage Loan during the
extension period shall be reduced by an amount equal to the product of (i) such
interest portion, multiplied by (ii) a fraction, the numerator of which is the
excess, if any, of (A) the then aggregate Stated Principal Balance of the
Mortgage Pool, over (B) the then aggregate of the Class Principal Balances of
those Classes of Regular Certificates (other than the Class IO Certificates)
with an earlier alphabetical Class designation than the Controlling Class, and
the denominator of which is the then aggregate Stated Principal Balance of the
Mortgage Pool.
(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 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,
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.
(d) In connection with its recovery of any P&I Advance out of
the Certificate Account pursuant to Section 3.05(a), the Master Servicer shall
be entitled to pay itself, 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 P&I Advance
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from the date made to but not including the date of reimbursement. The Master
Servicer shall reimburse itself for any outstanding P&I Advance as soon as
practicable after funds available for such purpose are deposited in the
Certificate Account.
SECTION 4.04. Allocation of Appraisal Reduction Amounts
and Realized Losses and Additional Trust Fund
Expenses.
(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 Appraisal Reduction Amounts (for purposes of determining distributions in
respect of interest on such Distribution Date) and 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), exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool to be outstanding immediately following such
Distribution Date: first, to the Class G Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; second, to the Class F
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; third, to the Class E Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fourth, to the Class D
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fifth, to the Class C Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; and sixth, to the Class B
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero. Any allocation of Appraisal Reduction Amounts and Realized
Losses and Additional Trust Fund Expenses to a Class of Regular Certificates
shall be made by reducing the Class Principal Balance thereof by the amount so
allocated. All Appraisal Reduction Amounts and Realized Losses and Additional
Trust Fund Expenses, if any, allocated to a Class of Regular Certificates shall
be allocated among the respective Certificates of such Class in proportion to
the Percentage Interests evidenced thereby. All Appraisal Reduction Amounts and
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 Appraisal Reduction Amount and Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class A-1 Certificates
on any Distribution Date shall be deemed to have first been allocated to REMIC
II Regular Interest S with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Appraisal Reduction
Amount and Realized Loss and Additional Trust Fund Expense, if any, allocated to
the Class A-2 Certificates on any Distribution Date shall be deemed to have
first been allocated to REMIC II Regular Interest T with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC II Regular
Interest; each Appraisal Reduction Amount and Realized Loss and Additional Trust
Fund Expense, if any,
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allocated to the Class A-3 Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC II Regular Interest U with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC II Regular
Interest; each Appraisal Reduction Amount and Realized Loss and Additional Trust
Fund Expense, if any, allocated to the Class A-PO Certificates shall be deemed
to have first been allocated to REMIC II Regular Interest V with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC II Regular
Interest; each Appraisal Reduction Amount and Realized Loss and Additional Trust
Fund Expense, if any, allocated to the Class B Certificates on any Distribution
Date shall be deemed to have first been allocated to REMIC II Regular Interest W
with a corresponding reduction in the Uncertificated Principal Balance of such
REMIC II Regular Interest; each Realized Loss and Additional Trust Fund Expense,
if any, allocated to the Class C Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC II Regular Interest X with a
corresponding reduction in the Uncertificated Principal Balance of such REMIC II
Regular Interest; each Appraisal Reduction Amount and Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class D Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest Y with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; and each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class E, Class F and/or
Class G Certificates on any Distribution Date shall, in the case of each such
Class of Certificates, be deemed to have first been allocated to REMIC II
Regular Interest Z, with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest.
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 to be made pursuant to Section 4.01, Section 5.02 and
Article X and the actual and deemed allocations of Appraisal Reduction Amounts
and 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.
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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.
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.
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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, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9,
A-10, A-11, A-12, A-13 and A-14; 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 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 E, Class F and Class G Certificates, and in each such case in
integral multiples of $1 in excess thereof. Each Class of Residual Certificates
and Class IO Certificates will be issuable only in denominations representing
Percentage Interests of not less than 10.0% and 10.0%, respectively.
(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 officers 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 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
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Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and (if the Trustee is not the
Certificate Registrar) 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 G- I hereto, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 hereto or as Exhibit G-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
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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 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 E, Class F or Class G 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 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
affidavit to that effect in the form attached as Exhibit H 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 any Ownership Interest in 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 I-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
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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 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 an Ownership
Interest in 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 I-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
regulation 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
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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, without notice to
the Holder or any prior Holder of such Residual Certificate,
to sell such Residual Certificate to a 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 all information necessary to compute
any tax imposed (A) as a result of the Transfer of an
Ownership Interest in 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 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:
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(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 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 or the Trust Fund), to the
effect that doing so will not cause either 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 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.
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(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 to each such Person with an updated
copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Registered 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 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 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
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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 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
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.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
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, 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 Master Servicer
(or its direct or indirect parent) shall at all times maintain a long-term
unsecured debt rating of at least "AA" by each Rating Agency 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 Certificates by either
Rating Agency.
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, 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 both Rating Agencies,
such succession will not adversely affect the rating assigned by either Rating
Agency 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.
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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 of a representation, warranty or covenant made
herein; or (iii) incurred by reason of wilfull misfeasance, bad faith or
negligence 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 be expenses, costs and liabilities of the
Trust Fund, and the 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.
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
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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. The Master Servicer and the Special
Servicer shall have the right to resign at any other time provided that (i) each
of the Rating Agencies confirms in writing that the successor's appointment will
not result in a withdrawal, qualification or downgrade of any rating or ratings
assigned to any Class of Certificates, (ii) the resigning party pays all costs
and expenses in connection with such transfer, and (iii) the successor accepts
appointment prior to the effectiveness of such resignation.
Consistent with the foregoing, 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. 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 be payable to such successor.
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, the Master Servicer and the Special
Servicer shall each 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
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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.
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 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. Such Holder or
Holders shall so designate a Person to so serve by the delivery to the Trustee,
the Master Servicer and the existing Special Servicer of a written notice
stating such designation. 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 J-1. The designated Person shall become the
Special Servicer on the earlier of (a) the date that the Trustee shall have
received written confirmation from both 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, or
(b) provided that each Rating Agency has returned to the Trustee a copy of such
Notice and Acknowledgment signed by such Rating Agency, the 45th day after the
delivery of such Notice and Acknowledgment to the Rating Agencies if, within
such period of 45 days, the Trustee shall not have received a written notice
from either of the Rating Agencies stating that if the designated Person were to
serve as Special Servicer hereunder, then the rating or ratings of one or more
Classes of the Certificates would be qualified, downgraded or withdrawn. The
appointment of such designated Person as Special Servicer shall also be subject
to receipt by
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the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit J-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. 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 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, 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 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 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
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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, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice within fifteen (15) days, 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.
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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 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; or
(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; 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
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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
(viii) the net worth of the Master Servicer (or, in
the case of the initial Master Servicer, the consolidated net
worth thereof and of its direct or indirect parent),
determined in accordance with generally accepted accounting
principles, shall decline to less than $15,000,000; or
(ix) the Trustee shall have received a notice from
either Rating Agency 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 qualified, downgraded or withdrawn and the Trustee shall
not have received a subsequent notice from such Rating Agency
(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
(x) the Master Servicer shall fail to remit to the
Paying Agent for deposit into the Distribution Account, on any
P&I Advance Date, the full amount of P&I Advances required to
be made on such date, which failure continues unremedied until
4:00 p.m. New York City time on the next Business Day
succeeding such P&I Advance Date.
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) - (viii)
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
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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. If an Event of Default described in clause
(ix) or (x) of subsection (a) above shall occur with respect to the Master
Servicer or, if applicable, the Special Servicer (in either case, under such
circumstances, for purposes of this Section 7.01(b), the "Defaulting Party"),
the Trustee shall, by notice in writing (to be sent immediately by facsimile
transmission) to the Defaulting Party (with a copy of such notice to each other
party hereto), 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,
if any, as a Certificateholder hereunder. 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
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agree that, if it is terminated pursuant to this 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) 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 or a Servicing Account (if the Master Servicer is the
Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or (ii) 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 it 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 this 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). Any cost or expenses in
connection with any actions to be taken by the Master Servicer or Special
Servicer pursuant to this paragraph shall be borne by the Defaulting Party. For
purposes of this Section 7.01, the Trustee shall not be deemed to have
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knowledge of an Event of Default described in clauses (i)-(x) of subsection (a)
above unless a Responsible Officer of the Trustee assigned to and working in the
Trustee's Corporate Trust Division has actual knowledge thereof or unless notice
of any event which is in fact such an Event of Default is received by 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 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 (and the former Master Servicer or the Special Servicer,
as the case may be, shall cease to have) all the responsibilities, duties and
liabilities 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)(xi), the
unmade P&I Advances that gave rise to such Event of Default; provided that if
the Master Servicer is the resigning or terminated party, and if the Trustee is
prohibited by law or regulation from obligating itself to make P&I Advances (as
evidenced by an Opinion of Counsel delivered to the Depositor and the Rating
Agencies), the Trustee shall not be obligated to make such P&I Advances; and
provided, further, that any failure to perform such duties or responsibilities
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. The Trustee shall not be liable
for any of the representations and warranties of the resigning or terminated
party or for any losses incurred by the 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. Notwithstanding the above, the Trustee may, if it shall be unwilling
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 either Rating Agency will qualify, downgrade or withdraw
the rating or ratings on one or more Classes of Certificates, if the Trustee
acts in such capacity or if the Holders of Certificates entitled to at least 51%
of the Voting Rights so request in writing to the Trustee, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution that has a net worth of not less than $15,000,000, in
the case of the Master Servicer only, and that appointment of such institution
would not cause the qualification, downgrading or withdrawal of any rating on
any Class of Certificates as confirmed in writing by each Rating Agency), as the
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer or the Special Servicer, as the case may
be, hereunder; provided, however, that in the case of a resigning or terminated
Special Servicer, such appointment shall be subject to the
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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, promptly appoint 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 qualification, downgrading or withdrawal of its rating on
any Class of Certificates), as the successor to the Master Servicer hereunder in
the 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 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,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. 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.
(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 notice of the occurrence of such an
event, the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice 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
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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.
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). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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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),
shall examine them to determine whether they conform to the requirements of this
Agreement. 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 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
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of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(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.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(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 written
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 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; nothing contained herein
shall, however, 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;
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(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; and
(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.
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 Section 8.13 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
(other than as specifically set forth in Section 8.13) 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 it would have if it were not Trustee or such agent.
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SECTION 8.05. Fees and Expenses of Trustee; Indemnification
of Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and to itself all earned but unpaid Trustee's
Fees in respect of the Mortgage Loans and any REO Loans, 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. As to each Mortgage Loan and REO Loan, the Trustee's Fee
shall accrue from time to time at the Trustee Fee Rate, whether or not interest
is actually collected on each Mortgage Loan and REO Loan, on the basis of the
same principal amount and for the same period respecting which any related
interest payment due on such Mortgage Loan or deemed due on such REO Loan is
computed. The Trustee's Fees (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 or agent
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 or the
Certificates; 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 expense or 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 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) shall survive any resignation or
removal of the Trustee and appointment of a successor trustee.
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
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 at all times maintain a long-term
unsecured debt rating of at least "A" by each Rating Agency 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 either
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
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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 either 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.
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 Servicer and to all Certificateholders. Upon
receiving such notice of resignation, the Master Servicer shall promptly appoint
a successor trustee acceptable to the Depositor 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 current or revised Distribution Date Statement, Collection Report or Updated
Mortgage Loan Schedule required by 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 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 by written instrument or
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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 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.
(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.
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.
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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 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 die, become incapable of acting, resign
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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 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 (including, without
limitation, by reason of an Event of Default), the 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.
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
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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
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 or the Master Servicer, the Trustee or the Master Servicer 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" by each of Fitch and Standard & Poor's. The Trustee may
enter into agreements to appoint a Paying Agent which is not the Trustee,
provided that, such agreement: (i) is consistent with
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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 of Trustee
hereunder (including, without limitation, by reason of an Event of Default), the
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.
The initial Paying 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 to be
provided to the Authenticating 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
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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, 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.
SECTION 8.16. Representations and Warranties of Trustee.
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 of America.
(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 articles of incorporation 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.
(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
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, legal 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 (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
(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
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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 either the
ability of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(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 either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(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.
SECTION 8.17. Reports to the Securities and Exchange
Commission; Available Information.
(a) The Depositor shall prepare for filing, and the Trustee
shall execute, on behalf of the Trust Fund, and file with the Securities and
Exchange Commission, any and all reports, statements and information respecting
the Trust Fund and/or the Certificates required to be filed on behalf of the
Trust Fund under the Exchange Act. The Depositor shall promptly file, and
exercise its reasonable best efforts to obtain a favorable response to,
no-action requests to, or requests for other appropriate exemptive relief from,
the Securities and Exchange Commission regarding the usual and customary
exemption from certain reporting requirements granted to issuers of securities
similar to the Certificates. The Depositor agrees to indemnify and hold harmless
the Trustee with respect to any liability arising from the Trustee's execution
of such reports, statements and information that contain errors or omissions.
(b) The Master Servicer shall maintain at its office primarily
responsible for administration of the Trust Fund and shall, upon reasonable
advance notice, make available during normal business hours for review by the
Depositor, each Underwriter, any Holder of a Certificate or any Person
identified to the Master Servicer as a prospective transferee of a Certificate,
originals or copies of the following items: (i) in the case of a Holder or
prospective transferee of a Non-Registered Certificate, any private placement
memorandum or other disclosure document relating to the Certificates of such
Class, in the form most recently provided to the Master Servicer by the
Depositor or by any Person designated by the Depositor; and (ii) in all cases
(A) this Agreement and any amendments hereto entered into pursuant to Section
11.01, (B) all statements delivered to Certificateholders of the relevant Class
pursuant to Section 4.02(a) since the Closing Date, (C) all Officers'
Certificates delivered by the Master Servicer and the Special Servicer to the
Trustee since the Closing Date pursuant to Section 3.13, (D) all accountants'
reports caused to be delivered by the Master
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Servicer and the Special Servicer to the Trustee since the Closing Date pursuant
to Section 3.14, (E) the most recent inspection report prepared by the Special
Servicer or the Master Servicer and delivered to the Master Servicer in respect
of each Mortgaged Property pursuant to Section 3.12(a), (F) the most recent
annual operating statement and rent roll of each related Mortgaged Property and
financial statements of the related Mortgagor collected by the Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section
3.12(b), together with the accompanying written reports to be prepared by the
Master Servicer or the Special Servicer, as the case may be, and delivered to
the Trustee pursuant to Section 3.12(b), (G) any and all notices and reports
delivered to the Master Servicer with respect to any Mortgaged Property as to
which the environmental testing contemplated by Section 3.09(c) revealed that
any of the conditions set forth in clauses (A)(i) and (A)(ii) of the first
sentence thereof was not satisfied, (H) all Updated Mortgage Loan Schedules and
Collection Reports delivered by the Master Servicer to the Trustee since the
Closing Date pursuant to Sections 3.12(c) and 4.02(b), respectively, (I) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into or consented to by the Master Servicer or the Special Servicer and
delivered to the Trustee pursuant to Section 3.20, and (J) any and all Officers'
Certificates and other evidence delivered to the Trustee to support the Master
Servicer's or the Special Servicer's, as the case may be, determination that any
Advance was or, if made, would be, a Nonrecoverable Advance. The Master Servicer
shall make available copies of any and all of the foregoing items upon request
of any of the parties set forth in the previous sentence; however, the Master
Servicer shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
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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
Depositor or the Master 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, the aggregate amount
of unreimbursed Advances made by the Master Servicer, together with any interest
accrued and payable to the Master Servicer in respect of unreimbursed Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing
Fees remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer 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 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.
The Depositor or the Master 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 Master Servicer's or the Depositor's purchase of all of the
Mortgage Loans and each REO Property remaining in REMIC I, the Master Servicer
or the Depositor, as applicable, shall
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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 confirmation that such final deposit has been made,
the Trustee shall release or cause to be released to the Master 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 Master Servicer or the Depositor, as applicable, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties to the
Master Servicer (or its designee) 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.
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 Master 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, in each
case specifying (i) the Distribution Date upon which the Trust Fund will
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 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 (vi) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums and Yield Maintenance
Charges, shall be allocated in the following order of priority, in each case to
the extent of remaining available funds:
(i) to distributions of interest to the Holders of the Senior
Certificates and the Class IO Certificates, in an amount equal to, and
pro rata in accordance with, all Distributable Certificate Interest in
respect of each Class of Senior Certificates and the
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Class IO Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the holders of the Class
A-PO Certificates with respect to each Discount Mortgage Loan, in an
amount (not to exceed the Class Principal Balance of the Class A-PO
Certificates outstanding immediately prior to such Distribution Date)
equal to: (x) a portion of each payment or in respect of principal on
such Discount Mortgage Loan equal to the amount of such payment
multiplied by the Class A-PO Fraction and (y) the product of the Class
A-PO Fraction for such Discount Mortgage Loan and any Realized Losses
and Additional Trust Fund Expenses with respect to the related Discount
Mortgage Loan that were realized during the related Collection Period,
to the extent such Realized Losses and Additional Trust Fund Expenses
have not been allocated to the Class A-PO Certificates pursuant to
Section 4.04 herein;
(iii) to distributions of principal to the Holders of the
Class A-1 Certificates, in an amount equal to the Class Principal
Balance of the Class A-1 Certificates outstanding immediately prior to
such Distribution Date;
(iv) to distributions of principal to the Holders of the Class
A-2 Certificates, in an amount equal to the Class Principal Balance of
the Class A-2 Certificates outstanding immediately prior to such
Distribution Date;
(v) to distributions of principal to the Holders of the Class
A-3 Certificates, in an amount equal to the Class Principal Balance of
the Class A-3 Certificates outstanding immediately prior to such
Distribution Date;
(vi) to distributions to the Holders of the Class A-1, Class
A-2 and Class A-3 Certificates, in an amount equal to, and pro rata in
accordance with all Realized Losses and Additional Trust Fund Expenses
previously allocated to such Classes of Certificates 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;
(vii) 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;
(viii) to distributions of principal to the Holders of the
Class B Certificates, in an amount equal to the Class Principal Balance
of the Class B Certificates outstanding immediately prior to such
Distribution Date;
(ix) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Appraisal Reduction Amount Shortfalls and
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Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class B Certificates and not previously reimbursed;
(x) 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 of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xi) to distributions of principal to the Holders of the Class
C Certificates, in an amount equal to the Class Principal Balance of
the Class C Certificates outstanding immediately prior to such
Distribution Date;
(xii) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Appraisal Reduction Amount Shortfalls and Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the
Class C Certificates and not previously reimbursed;
(xiii) 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;
(xiv) to distributions of principal to the Holders of the
Class D Certificates, in an amount equal to the Class Principal Balance
of the Class D Certificates outstanding immediately prior to such
Distribution Date;
(xv) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Appraisal Reduction Amount Shortfalls and Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the
Class D Certificates and not previously reimbursed;
(xvi) 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;
(xvii) to distributions of principal to the Holders of the
Class E Certificates, in an amount equal to the Class Principal Balance
of the Class E Certificates outstanding immediately prior to such
Distribution Date;
(xviii) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Appraisal Reduction Amount Shortfalls and Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the
Class E Certificates and not previously reimbursed;
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(xix) 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;
(xx) to distributions of principal to the Holders of the Class
F Certificates, in an amount equal to the Class Principal Balance of
the Class F Certificates outstanding immediately prior to such
Distribution Date;
(xxi) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Appraisal Reduction Amount Shortfalls and Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the
Class F Certificates and not previously reimbursed;
(xxii) 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;
(xxiii) to distributions of principal to the Holders of the
Class G Certificates, in an amount equal to the Class Principal Balance
of the Class G Certificates outstanding immediately prior to such
Distribution Date;
(xxiv) to distributions to the Holders of the Class G and
Class IO Certificates, in that order, in an amount equal to, and in
reimbursement of, all Appraisal Reduction Amount Shortfalls and
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class G Certificates and not previously reimbursed;
and
(xxv) to distributions to the Holders of the Class R-I
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 clauses (i) through (xxiv) above.
Any Prepayment Premiums and Yield Maintenance Charges on
deposit in the Certificate Account as of the final Distribution Date shall be
distributed among the Holders of the Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D, Class E, Class F, Class G and Class IO Certificates in
accordance with Section 4.01(b). 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
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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 nine months after the second notice, all of the Certificates shall not
have been surrendered for cancellation, the Class R-II Certificateholder shall
be entitled to all unclaimed funds and other assets which remain subject
thereto.
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 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(h).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor or the Master 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 or the Depositor, as applicable, obtains at its own
expense and delivers to the Trustee and, in the case of the Depositor, to the
Trustee and the Master Servicer, an Opinion of Counsel, addressed to the Trustee
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 and REMIC
III as defined in Section 860F of the Code or cause REMIC I, REMIC II and REMIC
III to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) the Trustee 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 regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under
Section 860F of the Code and any regulations thereunder as
evidenced by an Opinion of Counsel obtained at the expense of
the Trust Fund;
(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 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
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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 Trustee 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 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 regulation 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) The 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 regulation Section
1.860G-1(a)(4)(iii), April 25, 2028 has been designated the "latest possible
maturity date" of each REMIC I Regular Interest, REMIC II Regular Interest and
each Class of Regular Certificates.
(f) Except as otherwise provided in subsections (i) and (j)
below, the REMIC Administrator shall pay out of its own funds, any and all tax
related expenses of the Trust Fund (including, but not limited to, any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to the Trust Fund that involve the Internal
Revenue Service or state tax authorities).
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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 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 any state or local taxing authority. Included among such duties, the REMIC
Administrator shall provide to: (i) any Transferor of a Residual Certificate,
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
either 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 either 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 either 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
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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 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 either 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 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 permitted by this Agreement, but in no
event at the cost or expense of the Trust Fund 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 either 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) and other
than the minimum tax that may be imposed on REMIC I, REMIC II or REMIC III by
Section 23151 or 23153 of the California Revenue and Taxation Code), 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; (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
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by the Trustee of any of its obligations under this Article X; or (v) 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
REMIC Administrator out of amounts on deposit in the Distribution Account in
reduction of the Available Distribution Amount pursuant to Section 3.05(b). Any
tax imposed on REMIC I, REMIC II or REMIC III by Section 23151 or Section 23153
of the California Revenue and Taxation Code shall be timely paid by the REMIC
Administrator out of its own funds without right of reimbursement therefor.
(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.
(1) 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 or the REO Account for gain; or (iii) the acquisition of any assets for
REMIC I, REMIC II or REMIC III (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Mortgage Loan and other than 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,
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REMIC II or REMIC III will receive a fee or other compensation for services nor
permit REMIC I, REMIC II or REMIC III to receive any income from assets 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.
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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 either 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 either 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 (which opinion, insofar as economic issues are concerned, may
rely upon the assurance of the Rating Agencies described below), adversely
affect in any material respect the interests of any Certificateholder; 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 does not adversely affect in any material respect the 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)
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 then outstanding, (iv)
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modify the provisions of Section 3.20 without the consent of the Holders of
Certificates entitled to all of the Voting Rights or (v) 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 either of REMIC I, REMIC II or REMIC III pursuant to the
REMIC Provisions or cause either 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 send a copy thereof 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) 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.
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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 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, shall have neglected or refused to institute any
such action, suit or proceeding. It is understood and intended, and expressly
covenanted by each
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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 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.
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, GE Capital Asset Management Corporation, 2000 West Loop South, 12th
floor, Houston, Texas 77207, Attention: Legal Department-MLMI 1996 C-1,
facsimile number: 713-624-4508; (iii) in the case of the Special Servicer, GE
Capital Realty Group, Inc., 16479 Dallas Parkway, Suite 400, Dallas, Texas
75248, Attention: Legal Department-MLMI 1996 C-1, facsimile number:
214-447-2647; (iv) in the case of the Trustee, Bankers Trust Company of
California, N.A., Three Park Plaza, 16th Floor, Irvine, California 92714,
Attention: MLMI 1996-C1; and (v) in the case of the Rating Agencies, (A) Fitch
Investors Service, L.P., One State Street Plaza, New York, New York 10004,
Attention: Commercial Mortgage Surveillance, facsimile number: 212-635-0295; and
(B) Standard & Poor's Ratings Group, 25 Broadway, New York, New York 10004,
Attention: Real Estate Ratings Group, Surveillance Manager, facsimile number:
212-412-0597; 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
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of the other provisions of this Agreement or of the Certificates or the rights
of the Holders thereof.
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, including, without limitation, the Mortgage
Loans, all principal and interest received or receivable with respect to the
Mortgage Loans (other than principal and interest payments due and payable prior
to the Cut-off Date and any Principal Prepayments received prior to the Cut-off
Date), all amounts held from time to time in the Certificate Account, the
Distribution Account and, if established, the REO Account and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
in and to the proceeds of any title, hazard or other Insurance Policies related
to such Mortgage Loans, and (ii) this Agreement shall constitute a security
agreement under applicable law. The Depositor shall file or cause to be filed,
as a precautionary filing, a Form UCC-1 substantially in the form attached as
Exhibit K hereto in all appropriate locations in the State of New York promptly
following the initial issuance of the Certificates, and the Master Servicer
shall prepare and file at each such office, and the Trustee shall execute,
continuation statements with respect thereto, in each case within six months
prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee and the Master
Servicer in preparing and filing such continuation statements. This Section
11.07 shall constitute notice to the Trustee pursuant to any of the requirements
of the New York UCC.
SECTION 11.08. Streit Act.
Any provisions required to be contained in this Agreement by
Section 126 of Article 4-A of the New York Real Property Law are hereby
incorporated herein, and such provisions shall be in addition to those conferred
or imposed by this Agreement; provided, however, that to the extent that such
Section 126 shall not have any effect, and if said Section 126 should at any
time be repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
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SECTION 11.09. 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 11.10. 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 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 material 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 Trustee,
the Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by either of
the Mortgage Loan Sellers pursuant to either of the Mortgage
Loan Purchase Agreements;
(v) any change in the location of the Distribution
Account; and
(vi) the final payment to any Class of
Certificateholders.
(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; and
(ii) any change in the location of the Certificate
Account.
(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.
(d) To the extent applicable, each of the Master Servicer and
the Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
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(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 to the
Trustee pursuant to Section 4.03(c) or 3.08;
(iv) each of the inspection reports described in
Section 3.12(a); and
(v) each Updated Mortgage Loan Schedule described in
Section 3.12(c).
(e) The Trustee shall (i) make available to each Rating
Agency, upon reasonable notice, the items described in Section 8.14(b) 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 Trustee shall promptly deliver to each Rating Agency a
copy of each statement or report described in Section 4.02.
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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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/ Bruce Ackerman
------------------------------------
Name: Bruce Ackerman
Title: Vice President
GE CAPITAL ASSET MANAGEMENT CORPORATION
Master Servicer
By: /s/ Bethann C. Roberts
------------------------------------
Name: Bethann C. Roberts
Title: Chief Executive Officer
GE CAPITAL REALTY GROUP, INC.
Special Servicer
By: /s/ Robert S. Riggs
------------------------------------
Name: Robert S. Riggs
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
By: /s/ Holly Holland
------------------------------------
Name: Holly Holland
Title: Vice President
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EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of
Rate: _______ % per annum the Class A-1 Certificates as
of the Closing Date:
$______________
Date of Pooling and Servicing Initial Certificate Principal
Agreement:________________ Balance of this Class A-1
Certificate as of the Closing
Date: $____________
Closing Date: Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$______________
First Distribution Date:
________________________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No.___________
</TABLE>
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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 (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 AND CLASS G
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-PO CERTIFICATES, CLASS A-2 CERTIFICATES
AND THE CLASS A-3 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-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
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includes any successor entity under the Agreement), GE Capital Asset Management
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital Realty
Group, Inc. in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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 Bankers Trust Company of California, N.A., 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) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
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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 Paying Agent 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 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
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<PAGE>
<PAGE>
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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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
-5-
<PAGE>
<PAGE>
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, 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.
-6-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _____________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
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.
BANKERS TRUST COMPANY, OF
CALIFORNIA, N.A.
as Authenticating Agent
By: ________________________
Authorized Officer
-7-
<PAGE>
<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
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 _____________________________________________________________
_______________________________________________________________________________.
-1-
<PAGE>
<PAGE>
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.
-2-
<PAGE>
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of
Rate:______ % per annum the Class A-2 Certificates as
of the Closing Date:
$_______________
Date of Pooling and Servicing Initial Certificate Principal
Agreement: ___________ Balance of this Class A-2
Certificate as of the Closing
Date: $___________
Closing Date: ____________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$_______________
First Distribution Date:
- -----------
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No. ____________
</TABLE>
-1-
<PAGE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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 (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 AND CLASS G
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-PO CERTIFICATES, THE CLASS A-1
CERTIFICATES AND THE CLASS A-3 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 specified above (the "Agreement"), among Merrill
Lynch Mortgage
-2-
<PAGE>
<PAGE>
Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GE Capital Asset Management
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital Realty
Group, Inc. (in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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 Bankers Trust Company of California, N.A., 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) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
-3-
<PAGE>
<PAGE>
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 Paying Agent 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.
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
-4-
<PAGE>
<PAGE>
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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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
-5-
<PAGE>
<PAGE>
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, 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.
-6-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _______________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
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.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Authenticating Agent
By: __________________________
Authorized Officer
-7-
<PAGE>
<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
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 _____________________________________________________________
_______________________________________________________________________________.
-1-
<PAGE>
<PAGE>
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.
-2-
<PAGE>
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of
Rate:______ % per annum the Class A-3 Certificates as
of the Closing Date:
$_______________
Date of Pooling and Servicing Initial Certificate Principal
Agreement:______________ Balance of this Class A-3
Certificate as of the Closing
Date:_____________
Closing Date:_______________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
________________
First Distribution Date:
_______________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No._________
</TABLE>
-1-
<PAGE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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 (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 AND CLASS G
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-PO CERTIFICATES, 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.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal amount of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Merrill
Lynch Mortgage
-2-
<PAGE>
<PAGE>
Investors, Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Agreement), GE Capital Asset Management Corporation
(in such capacity, hereinafter called the "Master Servicer", which term includes
any successor entity under the Agreement), GE Capital Realty Group, Inc. (in
such capacity, hereinafter called the "Special Servicer", which term includes
any successor entity under the Agreement) and Bankers Trust Company of
California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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-3 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-3
Certificates will be made by Bankers Trust Company of California, N.A., 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) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
-3-
<PAGE>
<PAGE>
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 Paying Agent 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-3 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-3 Certificates are exchangeable for new Class A-3 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-3 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 A-3 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
-4-
<PAGE>
<PAGE>
connection with any transfer or exchange of Class A-3 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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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-3 Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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
-5-
<PAGE>
<PAGE>
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, 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.
-6-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: __________________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Certificate Registrar
By: __________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Authenticating Agent
By: __________________________
Authorized Officer
-7-
<PAGE>
<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
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 ____________________________________________________________
_______________________________________________________________________________.
-1-
<PAGE>
<PAGE>
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 ____________________________, asits agent.
-2-
<PAGE>
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-PO CERTIFICATE
CLASS A-PO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance
Rate: N/A of the Class A-PO Certificates
as of the Closing Date:
______________
Date of Pooling and Servicing Initial Certificate Principal
Agreement: ______________ Balance of this Class A-PO
Certificate as of the Closing
Date: __________
Closing Date: ___________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
________________
First Distribution Date:
______________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No._________
</TABLE>
-1-
<PAGE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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 (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 APRIL
3, 1996. 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 MARCH 7, 1996
AND THE PROSPECTUS SUPPLEMENT DATED APRIL 1, 1996 RELATING TO THIS CERTIFICATE)
OF 0% (THE "PREPAYMENT ASSUMPTION"), THIS $254,384 OF INITIAL CERTIFICATE
BALANCE AMOUNT, THE YIELD TO MATURITY IS 20% PER ANNUM, AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $694.375 PER $1,000
OF INITIAL CERTIFICATE BALANCE 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.
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 AND CLASS G
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-1 CERTIFICATES, CLASS A-2 CERTIFICATES
AND THE CLASS A-3 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.
-2-
<PAGE>
<PAGE>
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-PO Certificate (obtained by
dividing the principal amount of this Class A-PO Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-PO Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-PO 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), GE Capital Asset Management
corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital Realty
Group, Inc. in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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-PO Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-PO
Certificates will be made by Bankers Trust Company of California, N.A., 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
-3-
<PAGE>
<PAGE>
applicable to all subsequent distributions) and is the registered owner of
Certificates the aggregate initial Certificate Principal Balance of which is at
least $5,000,000, 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 Paying Agent 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-PO 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-PO Certificates are exchangeable for new Class A-PO 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
-4-
<PAGE>
<PAGE>
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-PO 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 A-PO 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-PO 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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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-PO Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
-5-
<PAGE>
<PAGE>
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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, 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.
-6-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: ___________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.
as Certificate Registrar
By: __________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-PO Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.
as Authenticating Agent
By: __________________________
Authorized Officer
-7-
<PAGE>
<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
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 _____________________________________________________________
_______________________________________________________________________________.
-1-
<PAGE>
<PAGE>
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.
-2-
<PAGE>
<PAGE>
EXHIBIT A-5
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of the
Rate:______ % per annum Class B Certificates as of the
Closing Date:_________
Date of Pooling and Servicing Initial Certificate Principal
Agreement: _____________ Balance of this Class B
Certificate as of the Closing
Date: _____________
Closing Date: ____________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
_________________
First Distribution Date:
___________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No. _________
</TABLE>
-1-
<PAGE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE A-PO 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 INTERNAL REVENUE CODE OF 1986 (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.
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.
-2-
<PAGE>
<PAGE>
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS A-3 CERTIFICATES & A-PO 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 AND CLASS G 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), GE Capital Asset Management
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital Realty
Group, Inc. (in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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
-3-
<PAGE>
<PAGE>
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 Bankers Trust Company of California, N.A., 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) and is the registered owner of
Certificates the aggregate initial Certificate Principal Balance of which is at
least $5,000,000, 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 Appraisal Reduction Amount
Shortfall, 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 Appraisal
Reduction Amount Shortfall, 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 Paying Agent 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
-4-
<PAGE>
<PAGE>
herefor or in lieu hereof whether or not notation of such distribution is made
upon this Certificate.
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 H
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,
-5-
<PAGE>
<PAGE>
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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
-6-
<PAGE>
<PAGE>
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.
-7-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: ___________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Certificate Registrar
By: __________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Authenticating Agent
By: __________________________
Authorized Officer
-8-
<PAGE>
<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
-1-
<PAGE>
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions hall, 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.
-2-
<PAGE>
<PAGE>
EXHIBIT A-6
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of the
Rate: ______% per annum Class C Certificates as of the
Closing Date:
_________________
Date of Pooling and Servicing Initial Certificate Principal
Agreement: Balance of this Class C
______________ Certificate as of the Closing
Date:
___________
Closing Date:______________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
_____________
First Distribution Date:
____________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No.
____________
</TABLE>
-1-
<PAGE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, CLASS IO AND 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 INTERNAL REVENUE CODE OF 1986 (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 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.
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 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE
-2-
<PAGE>
<PAGE>
DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE
IS APRIL 3, 1996. 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 MARCH 7, 1996
AND THE PROSPECTUS SUPPLEMENT DATED APRIL 1, 1996 RELATING TO THIS CERTIFICATE)
OF 0% (THE "PREPAYMENT ASSUMPTION"), THIS $182,300,000 OF INITIAL CERTIFICATE
BALANCE AMOUNT, THE YIELD TO MATURITY IS 7.59% PER ANNUM, AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $8.1815278 PER $1,000
OF INITIAL CERTIFICATE BALANCE 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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3 AND CLASS B 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 D, CLASS E, CLASS F AND CLASS G 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), GE Capital Asset Management
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital Realty
Group, Inc. (in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California, N.A. (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
-3-
<PAGE>
<PAGE>
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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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 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 Bankers Trust Company of California, N.A., 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) and is the registered
owner of Certificates the aggregate initial Certificate Principal Balance of
which is at least $5,000,000, 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 Paying Agent 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
-4-
<PAGE>
<PAGE>
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 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 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 H
to the Agreement.
No service charge will be imposed for any registration of
transfer or exchange of Class C Certificates, but the
-5-
<PAGE>
<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 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, 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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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>
<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, 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.
-7-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:
_____________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Certificate Registrar
By: _____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Authenticating Agent
By: ______________________________
Authorized Officer
-8-
<PAGE>
<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
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______________________________________________________________________________
_______________________________________________________________________________.
-1-
<PAGE>
<PAGE>
This information is provided by _____________________, the
Assignee named above, or ________________________, as its agent.
-2-
<PAGE>
<PAGE>
EXHIBIT A-7
FORM OF CLASS D CERTIFICATE
CLASS D MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of the
Rate:_____% per annum Class D Certificates as of the
Closing Date:
_________________
Date of Pooling and Servicing Initial Certificate Principal
Agreement:______________ Balance of this Class D
Certificate as of the Closing
Date:___________
Closing Date:______________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
_____________
First Distribution Date:
____________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer: CUSIP No. ____________
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
-1-
<PAGE>
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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 INTERNAL REVENUE CODE OF 1986 (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.
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 (THE
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<PAGE>
<PAGE>
"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 APRIL 3, 1996. 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 MARCH 7, 1996 AND THE PROSPECTUS SUPPLEMENT
DATED APRIL 1, 1996 RELATING TO THIS CERTIFICATE) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS $32,361,000 OF INITIAL CERTIFICATE BALANCE AMOUNT, THE YIELD
TO MATURITY IS 8.04% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $38.1815278 PER $1,000 OF INITIAL
CERTIFICATE BALANCE 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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-PO, CLASS A-1
CLASS A-2, CLASS A-3, 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 AND CLASS G 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), GE Capital Asset Management
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital Realty
Group, Inc. (in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California, N.A. (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
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<PAGE>
<PAGE>
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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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 Bankers Trust Company of California, N.A., 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) and is the registered
owner of Certificates the aggregate initial Certificate Principal Balance of
which is at least $5,000,000, 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 Paying Agent is
subsequently notified in writing.
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<PAGE>
<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,
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 H
to the Agreement.
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<PAGE>
<PAGE>
No service charge will be imposed for any registration of
transfer or exchange of Class D 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
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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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
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<PAGE>
<PAGE>
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, 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.
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<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:_____________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Certificate Registrar
By: _______________________
Authorized Officer
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<PAGE>
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY, OF
CALIFORNIA, N.A.,
as Authenticating Agent
By: ______________________
Authorized Officer
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<PAGE>
<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
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>
<PAGE>
EXHIBIT A-8
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of the
Rate:_____% per annum Class E Certificates as of the
Closing Date:
_________________
Date of Pooling and Servicing Initial Certificate Principal
Agreement:______________ Balance of this Class E
Certificate as of the Closing
Date:___________
Closing Date:______________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
_____________
First Distribution Date:
____________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer: CUSIP No. ____________
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
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<PAGE>
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 INTERNAL REVENUE CODE OF 1986 (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 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
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 THIS REGISTRATION OF TRANSFER OF A CLASS E
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 H TO THE AGREEMENT.
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<PAGE>
<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-PO, CLASS A-1,
CLASS A-2, CLASS A-3, 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 AND CLASS G 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 Merrill Lynch, Pierce, Fenner & Smith Inc.
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),
GE Capital Asset Management Corporation (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), GE Capital Realty Group, Inc. (in such capacity, hereinafter called
the "Special Servicer", which term includes any successor entity under the
Agreement) and Bankers Trust Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first
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<PAGE>
<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 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 GE Capital Asset Management Corporation, 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) and is the registered
owner of Certificates the aggregate initial Certificate Principal Balance of
which is at least $5,000,000, 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 Appraisal
Reduction Amount Shortfall or 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 Appraisal Reduction Amount Shortfall or 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 Paying Agent 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.
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<PAGE>
<PAGE>
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 any Class E 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 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
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-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
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<PAGE>
<PAGE>
obligated to register or qualify the Class E 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 E Certificate without
registration or qualification. Any Class E Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class E 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 service charge will be imposed for any registration of
transfer or exchange of Class E 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
E 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 the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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
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<PAGE>
<PAGE>
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, 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.
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<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:______________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Certificate
Registrar
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY of
California, N.A.,
as Authenticating Agent
By:________________________________
Authorized Officer
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<PAGE>
<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
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 _____________________________________________________________
_______________________________________________________________________________.
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<PAGE>
<PAGE>
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>
<PAGE>
EXHIBIT A-9
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of the
Rate:_____% per annum Class F Certificates as of the
Closing Date:
_________________
Date of Pooling and Servicing Initial Certificate Principal
Agreement:______________ Balance of this Class F
Certificate as of the Closing
Date:___________
Closing Date:______________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
_____________
First Distribution Date:
____________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer: CUSIP No. ____________
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
-1-
<PAGE>
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 INTERNAL REVENUE CODE OF 1986 (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 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 (a) MAY CONSTITUTE "PLAN ASSETS" OF A PLAN),
PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF 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 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 THIS REGISTRATION OF TRANSFER OF A CLASS F
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 H TO THE AGREEMENT.
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>
<PAGE>
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-PO, CLASS A-1,
CLASS A-2, CLASS A-3, 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 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 Merrill Lynch, Pierce, Fenner & Smith Inc.
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),
GE Capital Asset Management Corporation (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), GE Capital Realty Group, Inc. (in such capacity, hereinafter called
the "Special Servicer", which term includes any successor entity under the
Agreement) and Bankers Trust Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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
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<PAGE>
<PAGE>
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 Bankers Trust Company of California, N.A., 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) and is the registered
owner of Certificates the aggregate initial Certificate Principal Balance of
which is at least $5,000,000, 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 Appraisal
Reduction Amount Shortfall or 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 Appraisal Reduction Amount Shortfall or 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 Paying Agent 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 F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and
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<PAGE>
<PAGE>
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 any Class F 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 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
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-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 F
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 F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F 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 service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Certificate Registrar may
require payment of a sum sufficient to
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<PAGE>
<PAGE>
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Class F 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 the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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,
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<PAGE>
<PAGE>
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.
-7-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:_____________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as
Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY, OF
CALIFORNIA, N.A.,
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
<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>
<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>
<PAGE>
EXHIBIT A-10
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
<TABLE>
<S> <C>
Initial Pass-Through Class Principal Balance of
Rate: ___% per annum the Class G Certificates
as of the Closing Date:
______________________________
Date of Pooling and Servicing Initial Certificate Principal
Agreement: _____________ Balance of this Class G
Certificate as of the Closing
Date: _________________________
Closing Date: ________________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
_______________________________
First Distribution Date:
____________________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer: CUSIP No. ______________________
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
-1-
<PAGE>
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL REALTY GROUP, INC. OR ANY OF
THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 INTERNAL REVENUE CODE OF 1986 (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 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
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 THIS REGISTRATION OF TRANSFER OF A CLASS G
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
-2-
<PAGE>
<PAGE>
PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN
THE FORM OF EXHIBIT H TO THE AGREEMENT.
SOLELY FOR U.S. FEDERAL 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-PO, CLASS A-1,
CLASS A-2, CLASS A-3, 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, 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 Merrill Lynch, Pierce, Fenner & Smith Inc.
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),
GE Capital Asset Management Corporation (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), GE Capital Realty Group, Inc. (in such capacity, hereinafter called
the "Special Servicer", which term includes any successor entity under the
Agreement) and Bankers Trust Company of California, N.A. (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 25th day of each month or, if such 25th day
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<PAGE>
<PAGE>
is not a Business Day, the Business Day immediately following (each, a
"Distribution 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 Bankers Trust Company of
California, N.A., 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) and is the registered owner of Certificates the aggregate initial
Certificate Principal Balance of which is at least $5,000,000, 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 Appraisal Reduction Amount Shortfall or 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 Appraisal Reduction Amount Shortfall or 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 Paying Agent 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,
-4-
<PAGE>
<PAGE>
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.
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 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
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-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
-5-
<PAGE>
<PAGE>
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 by the
acceptance 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.
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.
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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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<PAGE>
<PAGE>
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, 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.
-7-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: ____________
BANKERS TRUST COMPANY
OF CALIFORNIA N.A., as
Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
OF CALIFORNIA N.A.,
as Authenticating Agent
By: ____________________________________
Authorized Officer
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<PAGE>
<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>
<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.
-2-
<PAGE>
<PAGE>
EXHIBIT A-11
FORM OF CLASS IO CERTIFICATE
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Date of Pooling and Servicing Certificate Notional Amount
Agreement: __________________ of this Class IO
Certificate as of the Closing Date:
$________________________________________
Closing Date: ______________ Aggregate Certificate Notional
Amount of all Class
IO Certificates as of the Closing Date:
$________________________________________
First Distribution Date:
_______________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of California, N.A.
Corporation
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1 CUSIP No. ________________
</TABLE>
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
-1-
<PAGE>
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, N.A., GE
CAPITAL ASSET MANAGEMENT CORPORATION, GE CAPITAL ASSET MANAGEMENT CORPORATION,
GE CAPITAL REALTY GROUP, INC. OR ANY OF THEIR RESPECTIVE 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 HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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.
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 (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 APRIL
3, 1996. 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 MAujRCH 7, 1996
AND THE PROSPECTUS SUPPLEMENT DATED APRIL 1, 1996 RELATING TO THIS CERTIFICATE)
OF 0% (THE "PREPAYMENT ASSUMPTION"), THIS $857,332,459 OF INITIAL COMPONENT
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 10.538% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $18.8748823 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>
<PAGE>
This certifies that Merrill Lynch, Pierce, Fenner & Smith Inc.
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), GE Capital Asset Management
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GE Capital, Realty
Group, Inc. (in such capacity, hereinafter called the "Special Servicer", which
term includes any successor entity under the Agreement) and Bankers Trust
Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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 Bankers Trust Company of California, N.A. 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) and is the registered
owner of Class IO Certificates the aggregate initial Certificate Notional Amount
of which is at least $5,000,000, 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 presentation and surrender of
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<PAGE>
<PAGE>
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 transfer of any Class IO 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 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
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be
-4-
<PAGE>
<PAGE>
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 IO
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 IO Certificate without registration or qualification. Any Class IO
Certificateholder desiring to effect such a transfer shall, and by the
acceptance 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.
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.
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, 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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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 purchase is subject to
-5-
<PAGE>
<PAGE>
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
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, 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.
-6-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Certificate
Registrar
By: ________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Authenticating Agent
By: _______________________________
Authorized Officer
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<PAGE>
<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
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 _____________________________________________________________
_______________________________________________________________________________.
-1-
<PAGE>
<PAGE>
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.
-2-
<PAGE>
<PAGE>
EXHIBIT A-12
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced
Agreement: __________________ by this Class R-I
Certificate: ___________%
Closing Date: _______________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date: $________________
First Distribution Date:
___________________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of California, N.A.
Corporation
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
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<PAGE>
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, GE CAPITAL
ASSET MANAGEMENT CORPORATION OR ANY OF THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 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 INTERNAL REVENUE CODE OF 1986 (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).
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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This certifies that Merrill Lynch, Pierce, Fenner & Smith Inc.
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),
GE Capital Asset Management Corporation (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), GE Capital Realty Group, Inc. in such capacity, hereinafter called
the "Special Servicer", which term includes any successor entity under the
Agreement) and Bankers Trust Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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
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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-I Certificates are issuable in fully registered
form only without coupons in minimum denominations 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 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 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 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 G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-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
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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 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 by the
acceptance 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,
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 H
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 Bankers Trust Company of California, N.A., 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 I-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the
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<PAGE>
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
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 I-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 regulation 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 such modification of,
addition to or elimination of such provisions will not cause the Trust Fund 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
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"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 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 or trust whose income from sources without the United States is income
for United States federal income tax purposes regardless of its connection of a
trade or business within the United States.
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
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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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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, 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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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.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: ______________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
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.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Authentication Agent
By: _____________________________________
Authorized Officer
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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
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be made by check payable to ______________
________________________________________________________________________________
and mailed to __________________________________________________________________
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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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EXHIBIT A-13
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
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<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced
Agreement: __________________ by this Class R-II
Certificate: ____%
Closing Date: _________________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$__________________________
First Distribution Date:
_______________________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of California, N.A.
Corporation
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
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THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, GE CAPITAL
ASSET MANAGEMENT CORPORATION OR ANY OF THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 INTERNAL REVENUE CODE OF 1986 (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).
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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This certifies that Merrill Lynch, Pierce, Fenner & Smith Inc.
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),
GE Capital Asset Management Corporation (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), GE Capital Realty Group, Inc. (in such capacity, hereinafter called
the "Special Servicer", which term includes any successor entity under the
Agreement) and Bankers Trust Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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
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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-II Certificates are issuable in fully registered
form only without coupons in minimum denominations 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 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 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 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
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-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
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<PAGE>
<PAGE>
the Depositor, the Trustee or the Certificate Registrar is obligated 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 by the acceptance 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 rotation, 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,
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 H
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 Bankers Trust Company of California, N.A., 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 I-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>
<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 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 I-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 regulation 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 such modification of,
addition to or elimination of such provisions will not cause the Trust Fund 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
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<PAGE>
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 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 or trust whose income from sources without the United States is income
for United States federal income tax purposes regardless of its connection of a
trade or business within the United States.
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.
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<PAGE>
<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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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, 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>
<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.
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<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: ______________________
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
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.
BANKERS TRUST COMPANY, OF
CALIFORNIA, N.A.,
as Authentication Agent
By: _____________________________________
Authorized Officer
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<PAGE>
<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
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be by check made payable to ______________
________________________________________________________________________________
and mailed to __________________________________________________________________
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<PAGE>
<PAGE>
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>
<PAGE>
EXHIBIT A-14
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-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.
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced
Agreement: April 1, 1996 by this Class R-III
Certificate: ____%
Closing Date: __________________ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$____________________
First Distribution Date:
__________________________
Master Servicer: Trustee:
GE Capital Asset Management Bankers Trust Company of
Corporation California, N.A.
Special Servicer:
GE Capital Realty Group, Inc.
Certificate No. 1
</TABLE>
-1-
<PAGE>
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., BANKERS TRUST COMPANY OF CALIFORNIA, GE CAPITAL
ASSET MANAGEMENT CORPORATION OR ANY OF THEIR RESPECTIVE 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-PO, CLASS A-1, CLASS A-2, CLASS
A-3, 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 INTERNAL REVENUE CODE OF 1986 (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).
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>
<PAGE>
This certifies that Merrill Lynch, Pierce, Fenner & Smith Inc.
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),
GE Capital Asset Management Corporation (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), GE Capital Realty Group, Inc. (in such capacity, hereinafter called
the "Special Servicer", which term includes any successor entity under the
Agreement) and Bankers Trust Company of California, N.A. (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 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution 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 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
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<PAGE>
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 in minimum denominations 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 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 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-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 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 G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-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
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<PAGE>
<PAGE>
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 by the acceptance 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-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 rotation, 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,
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 H
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 GE Capital Asset Management Corporation, N.A., 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 I-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>
<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 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 I-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 regulation 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 such modification of,
addition to or elimination of such provisions will not cause the Trust Fund 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-1I
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
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<PAGE>
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 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 or trust whose income from sources without the United States is income
for United States federal income tax purposes regardless of its connection of a
trade or business within the United States.
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.
-7-
<PAGE>
<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 Master Servicer or the Depositor 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 Master Servicer or the Depositor 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
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
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, 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.
-8-
<PAGE>
<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.
-9-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: ______________________
BANKERS TRUST COMPANY, OF
CALIFORNIA, N.A.,
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.
BANKERS TRUST COMPANY, OF
CALIFORNIA, N.A.,
as Authentication Agent
By: _____________________________________
Authorized Officer
-10-
<PAGE>
<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
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be by check made payable to ______________
________________________________________________________________________________
and mailed to ________________________________________________________________.
-1-
<PAGE>
<PAGE>
Applicable statements and notices should be mailed to
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________, as its agent.
-2-
<PAGE>
<PAGE>
EXHIBIT B
<TABLE>
<CAPTION>
Total Pool
MLMI 1996 - C1
MORTGAGE LOAN SCHEDULE
- ------------------------------------------------------------------------------------------------------------------------------------
Control # Property Name Address City State Zipcode
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Mountaingate Plaza First St & Los Angeles Ave Simi Valley CA 93065
2 Renaissance Center West 4001 South Decatur Blvd. Las Vegas NV 89103
4 Tropicana Palms 6420 East Tropicana Avenue Las Vegas NV 89122
101 Weavers Mill 91 Elm Street Manchester CT 06040
6 Holiday Manor Shopping Center 4820 US Highway 42 Northfield KY 40222
102 Cedar Springs Apartments 1750 East Karen Avenue Las Vegas NV 89109
103 Desert Springs Apartments 1500 Karen Avenue Las Vegas NV 89109
7 Mission Park Apartments 221 Woodland Parkway San Marcos CA 92069
104 33 Gold Street 33 Gold Street New York NY 10038
8 Canyon Country Plaza 19120 Soledad Canyon Road Santa Clarita CA 91355
9 Verde Mont Villas 6155 Palm Avenue San Bernardino CA 92407
105 West Kentucky Outlet Center 208 Outlet Avenue Eddyville KY 42038
10 Brigantine Town Center 4200 Harbor Beach Boulevard Brigantine NJ 08203
11 Pace's Crossing Apartments 2411 I-35E South Denton TX 76205
12 The Corner at Seven Corners 6270 - 6290 Arlington Boulevard Falls Church VA 22044
13 New Colony Apartments 1805-1917 S. Shields Street Fort Collins CO 80526
107 Rancho Vista Retirement and Health Ce 760 East Bobier Drive Vista CA 92084
108 Candletree Apartments 5280 Tamarack Circle East Columbus OH 43229
109 123 West 44th Street 123 West 44th Street New York NY 10036
14 Southglen Center 12035-12055 Metcalf Ave. Overland Park KS 66126
15 Northgate Shopping Center 7100 West State Street Boise ID 83703
16 ANA ParkTowne Apartments 290 Wilson Avenue Perris CA 92571
17 Sunvilla Estates 91 Cabernet Parkway Reno NV 89512
18 Pecan Square Apartments 3535 Webb Chapel Extension Dallas TX 75220
19 Santee Town Center Town Center Parkway Santee CA 92071
111 Mark Twain 170 Steamboat Lane Ballwin MO 63011
112 220 East 22nd Street 220 East 22nd Street New York NY 10010
113 Hunter Mill Plaza 2946-2952 Chain Bridge Road Oakton VA 22124
207 Wisconsin Rapids - Public Warehouse 1941 Engle Rd. Wisconsin WI 54494
114 Sierra Apartments and Townhomes 2901 Haine Drive Harlingen TX 78550
20 Briarhill Apartments 140 West Hill Avenue Fullerton CA 92632
22 Emorywoods Apartments 2085 Powell Lane DeKalb County GA 30033
21 Canyon View Apartments 7400 Pirates Cove Road Las Vegas NV 89128
216 Northwood Apartments 4200 Loch Raven Blvd. Baltimore MD 21218
26 Rainbow Professional Center 2655-2685 S. Rainbow Blvd. Las Vegas NV 89102
23 Cedar Crest Square Shopping Center Quentin Road Lebanon PA 17042
25 Ocotillo Plaza 2415-2501 E. Tropicana Las Vegas NV 89121
115 Greentree Apartments 710 Appletree Court Claymont DE 19703
27 Coral Gables Apartments 10522 Beechnut Houston TX 77072
30 Heritage Place Shopping Center 63 Church Street Flemington NJ 08822
117 Gardner Street Apartments 75, 84, 88 & 90 Gardner Street Allston MA 02134
29 Trailer Rancho Mobile Home Park 3499 East Bayshore Rd. Redwood City CA 94063
28 Sorrento Pines 4104-4122 Sorrento Valley Blvd. San Diego CA 92121
32 El Encanto Villas 1151 Walnut Avenue Tustin CA 92680
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
- -------------------------------------------------------------------------------------------------------------------------------
1 24,074,864.17 186,806.67 8.050 119 299 3/1/06 No 0
2 16,821,585.42 130,467.64 8.020 129 297 1/1/07 No 0
4 15,000,000.00 108,604.28 7.860 60 360 4/1/01 No 50 per pad
101 10,903,261.39 80,850.28 8.090 117 357 1/1/06 No 200 per unit
6 10,800,000.00 86,964.53 8.500 120 300 4/1/06 No 0
102 10,735,525.86 78,879.69 8.000 118 358 2/1/06 No 238 per unit
103 10,735,525.86 78,879.69 8.000 118 358 2/1/06 No 238 per unit
7 10,178,306.68 73,144.55 7.760 117 357 1/1/06 No 200 per unit
104 10,025,710.40 77,134.87 8.250 117 327 1/1/06 Yes 325 per unit
8 9,993,584.14 74,915.86 8.220 179 359 3/1/11 No 0
9 9,805,466.13 68,864.71 7.530 58 358 2/1/01 No 200 per unit
105 9,570,125.49 74,891.05 8.125 117 297 1/1/06 No .10 per sq. ft.
10 8,500,000.00 68,558.90 8.520 84 300 4/1/03 No 0
11 8,480,000.00 64,304.54 8.350 120 360 4/1/06 No 293 per unit
12 8,079,917.82 61,937.89 8.440 116 356 12/1/05 No 0
13 7,989,030.59 58,200.02 7.910 118 358 2/1/06 No 250 per unit
107 7,985,069.45 65,771.49 8.750 118 298 2/1/06 No 256 per unit
108 7,786,890.07 58,533.19 8.000 118 328 2/1/06 No 283 per unit
109 7,680,960.48 58,439.15 8.125 117 327 1/1/06 Yes 435 per unit
14 7,594,668.36 54,604.97 7.780 119 359 3/1/06 No 0
15 7,270,628.93 56,144.82 8.540 119 359 3/1/06 No 0
16 7,235,335.91 54,137.42 8.200 119 359 3/1/06 No 235 per unit
17 7,150,000.00 53,665.31 8.240 120 360 4/1/06 No 50 per pad
18 7,035,189.32 51,216.02 7.910 119 359 3/1/06 No 225 per unit
19 6,992,887.14 55,004.53 8.210 83 299 3/1/03 No 0
111 6,771,112.04 52,483.50 8.000 116 296 12/1/05 No 302 per unit
112 6,584,048.62 50,655.74 8.250 117 327 1/1/06 No 372 per unit
113 6,335,303.75 49,682.07 8.150 117 297 1/1/06 No .68 per sq. ft.
207 6,294,267.36 52,352.64 8.880 119 299 3/1/06 No .10 per sq. ft.
114 5,991,772.95 43,650.01 7.910 118 358 2/1/06 No 218 per unit
20 5,841,167.22 40,624.01 7.430 58 358 2/1/01 No 200 per unit
22 5,794,192.60 45,924.06 8.300 179 299 3/1/11 No 286 per unit
21 5,791,602.88 41,111.90 7.640 118 358 2/1/06 No 225 per unit
216 5,545,759.33 43,553.17 8.500 83 329 3/1/03 No 250 per unit
26 5,503,300.00 46,636.56 9.120 84 300 4/1/03 No 0
23 5,482,953.68 42,997.86 8.150 117 297 1/1/06 No 0
25 5,459,180.97 44,381.74 8.580 117 297 1/1/06 Partial 0
115 5,186,917.85 39,128.33 8.030 81 327 1/1/03 No 275 per unit
27 5,046,355.96 35,795.71 7.640 83 359 3/1/03 No 250 per unit
30 5,000,000.00 42,440.20 9.140 60 300 4/1/01 No 0
117 4,994,634.80 38,177.70 7.875 83 299 3/1/03 No 240 per unit
29 4,993,254.19 36,653.38 7.990 118 358 2/1/06 No 50 per pad
28 4,983,915.69 38,326.21 7.920 81 297 1/1/03 No 0
32 4,942,600.30 34,543.35 7.480 58 358 2/1/01 No 200 per unit
<CAPTION>
- ------------------------------------------------------------------
Control # Servicing Subserv Strip Subservicer
Fees Fee
- ------------------------------------------------------------------
1 0.0775 0.0550 CB
2 0.0775 0.0550 CB
4 0.0775 0.0550 CB
101 0.0775 0.1250 Arbor
6 0.0775 0.0550 GE
102 0.0775 0.0550 GMAC
103 0.0775 0.0550 GMAC
7 0.0775 0.0550 CB
104 0.0775 0.0400 First Union
8 0.0775 0.0550 CB
9 0.0775 0.0550 CB
105 0.0775 0.0400 GMAC
10 0.0775 0.0550 GE
11 0.0775 0.0550 GE
12 0.0775 0.0550 CB
13 0.0775 0.0550 GE
107 0.0775 0.0400 First Union
108 0.0775 0.0400 First Union
109 0.0775 0.0400 First Union
14 0.0775 0.0550 CB
15 0.0775 0.0550 GE
16 0.0775 0.0550 CB
17 0.0775 0.0550 CB
18 0.0775 0.0550 CB
19 0.0775 0.0550 CB
111 0.0775 0.0400 First Union
112 0.0775 0.0400 First Union
113 0.0775 0.0400 First Union
207 0.0775 0.0400 First Union
114 0.0775 0.1250 Arbor
20 0.0775 0.0550 CB
22 0.0775 0.0550 CB
21 0.0775 0.0550 CB
216 0.0775 0.0750 GMAC
26 0.0775 0.0550 GE
23 0.0775 0.0550 GE
25 0.0775 0.0550 GE
115 0.0775 0.0400 First Union
27 0.0775 0.0550 CB
30 0.0775 0.0550 GE
117 0.0775 0.0400 First Union
29 0.0775 0.0550 CB
28 0.0775 0.0550 CB
32 0.0775 0.0550 CB
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Total Pool
- ------------------------------------------------------------------------------------------------------------------------------------
Control # Property Name Address City State Zipcode
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
35 Comfort Inn - Buckhead 2115 Piedmont Road, NE Atlanta GA 30324
118 210 East 22nd Street 210 East 22nd Street New York NY 10010
119 Shops of Dunwoody 550 Chamblee Dunwoody Road Dunwoody GA 30338
33 Coral Island Apartments 4700 South Kirkwood Houston TX 77072
116 Kings Point Plaza W. Atlantic Ave. and Carter/Jog Delray Beach Fl 33446
120 Yarn Mill 210 Pine Street Manchester CT 06040
121 Fox Meadows 1457 Burke Avenue N.E. Grand Rapids MI 49505
37 Post Falls Factory Outlet Center 4037 Riverbend Avenue Post Falls ID 83854
213 Hollyview Apartments 5555 Hollyview Houston TX 77091
38 Charleston Square (Phase I) 4420-4480 E. Charleston Blvd Las Vegas NV 89104
39 Chateau Montagne Apartments 2628 I-85 Access+M3 Road DeKalb County GA 30345
124 Duval Villa 4305 Duval Street Austin TX 78751
122 Windtree I & II Apartments 3630 and 3631 Brennan Blvd. Amarillo TX 79121
214 Willowbend Apartments 13949 Bammel North Houston TX 77066
126 Schofield Warehouse 3606 Concord Avenue Schofield WI 54476
125 Shoppes at Sawgrass Commons 13001-13191 West Sunrise Blvd. Sunrise FL 33323
40 Suntree Apartments 3040 Suntree Plaza Kansas City KS 66103
41 City Centre Office Building 200 Pine Avenue Long Beach CA 90802
217 Hampton House Apartments 204 East Joppa Road Baltimore County MD 21286
127 Van Mark Apartments 3980 Old Sterlington Road Monroe LA 71203
130 Quality Logistics 1709 I-45 South Hutchins TX 75141
128 Cedar Creek Apartments 3991 Camino Juliana Santa Fe NM 87501
129 Carroll Plaza Shopping Center 250 Englar Road Westminster MD 21157
131 Cedar Ridge 2082 Knoll Crest Arlington TX 76014
42 Peppertree Business Park 10656-10792 Roselle Street San Diego CA 92121
43 Medical Arts Shopping Center 4700 - 4845 Walters Avenue Savannah GA 31405
134 35 Main Street 35 Main Street Westport CT 06880
45 Warwick Apartments 3330 Webb Chapel Extension Dallas TX 75220
135 Hacienda Healthcare 361 East Grangeville Boulevard Hanford CA 93230
136 Sutton Park Apartments 517 East Edgewood Blvd Lansing MI 48911
46 ANA Vermont Breeze Apts 12901 S. Vermont Avenue Gardena CA 90247
137 Zelda Place Shopping Center 2900-3000 Zelda Road Montgomery AL 36116
138 The Spanish Mission Apartments 422 Connell Road Valdosta GA 31602
47 ANA Towngate 23227 Hemlock Avenue Moreno Valley CA 92571
140 Commerce Plaza 7000-7034 Commerce Street Springfield VA 22150
141 Blue River Apartments 1251 Adams Avenue Silverthorne CO 80498
48 ANA Country Hills Apts. 66900 Ironwood Drive Desert Hot Sprin CA 92240
142 Central High School 30 West Colfax Avenue South Bend IN 46601
143 KMart Plaza 863 S. Main Street Lapeer MI 48446
144 Hamilton Plaza West 74 Main Street 680,686 & 700 Framingham MA 01701
49 Bally's Scandinavian Health Spa 4733 Hills & Dales Road NW Canton OH 44708
145 Melody Place Apartments 6852 Shady Brook Lane Dallas TX 75231
147 Liberty West 3526 Langrehr Road Baltimore MD 21244
148 Spencerwood Shopping Center 9695 Spencer Highway Deer Park TX 77536
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
- -------------------------------------------------------------------------------------------------------------------------------
35 4,843,239.77 45,398.56 9.560 239 239 3/1/16 No 4% of gross revenue
118 4,838,278.15 37,224.29 8.250 117 327 1/1/06 No 415 per unit
119 4,835,210.54 38,239.83 8.250 117 297 1/1/06 No .10 per sq. ft.
33 4,786,543.57 33,952.76 7.640 83 359 3/1/03 No 250 per unit
116 4,772,827.00 40,498.10 9.125 119 299 3/1/06 No .29 per sq. ft.
120 4,569,389.68 33,883.11 8.090 117 357 1/1/06 No 200 per unit
121 4,542,240.45 33,897.02 7.920 118 328 2/1/06 No 225 per unit
37 4,487,356.36 36,996.46 8.750 117 297 1/1/06 No 0
213 4,446,472.08 34,307.09 8.300 83 329 3/1/03 No 200 per unit
38 4,325,000.00 34,884.38 8.520 120 300 4/1/06 No 0
39 4,227,692.74 33,225.93 8.200 179 299 3/1/11 No 262.5 per unit
124 4,206,822.06 32,209.19 8.420 115 355 11/1/05 No 235 per unit
122 4,133,613.18 31,397.76 8.125 119 329 3/1/06 No 318 per unit
214 4,121,729.73 31,801.52 8.300 83 329 3/1/03 No 200 per unit
126 4,121,246.49 34,278.50 8.880 119 299 3/1/06 No .10 per sq. ft.
125 4,087,497.57 32,326.46 8.250 117 297 1/1/06 No .22 per sq. ft.
40 3,960,000.00 30,061.50 8.360 120 360 4/1/06 No 250 per unit
41 3,933,309.09 32,234.16 8.700 119 299 3/1/06 No 0
217 3,900,000.00 30,749.56 8.250 120 300 4/1/06 No 208 per unit
127 3,887,532.98 29,994.98 7.959 117 297 1/1/06 No 200 per unit
130 3,878,000.00 32,212.73 8.875 84 300 4/1/03 No .10 per sq. ft.
128 3,842,584.21 28,923.76 8.250 297 357 1/1/21 No 200 per unit
129 3,818,219.88 30,454.50 8.375 83 299 3/1/03 No .16 per sq. ft.
131 3,738,330.27 29,254.32 8.125 117 297 1/1/06 No 370 per unit
42 3,667,988.99 27,989.66 7.830 57 297 1/1/01 No 0
43 3,640,175.86 30,655.67 9.010 57 297 1/1/01 No .15 per sq. ft.
134 3,585,607.99 28,685.55 8.375 116 296 12/1/05 No .41 per sq. ft.
45 3,497,754.45 26,220.55 8.220 119 359 3/1/06 No 225 per unit
135 3,496,942.54 29,672.05 9.125 119 299 3/1/06 No 250 per unit
136 3,394,285.42 25,514.47 8.000 118 328 2/1/06 No 289 per unit
46 3,392,725.21 24,311.04 7.730 57 357 1/1/01 No 200 per unit
137 3,303,473.93 25,943.57 8.500 119 329 3/1/06 No .25 per sq. ft.
138 3,297,349.92 25,282.59 8.230 119 329 3/1/06 No 307 per unit
47 3,295,096.34 23,096.68 7.510 58 358 2/1/01 No 235 per unit
140 3,165,119.63 24,768.65 8.125 117 297 1/1/06 No .75 per sq. ft.
141 3,125,891.23 23,240.16 8.125 298 358 2/1/21 No 200 per unit
48 3,097,816.46 22,230.21 7.760 59 359 3/1/01 No 329 per unit
142 3,016,025.81 22,408.57 8.125 299 359 3/1/21 Yes 200 per unit
143 3,001,400.93 23,462.56 8.100 116 296 12/1/05 No .20 per sq. ft.
144 2,994,045.04 23,904.63 8.375 118 298 2/1/06 No .14 per sq. ft.
49 2,880,545.16 32,309.93 9.490 155 155 3/1/09 No 0
145 2,873,211.71 22,723.13 8.250 297 297 1/1/21 No 205 per unit
147 2,840,784.23 21,874.07 8.250 116 326 12/1/05 No 250 per unit
148 2,739,445.90 22,375.87 8.625 116 296 12/1/05 No .10 per sq. ft.
<CAPTION>
- ------------------------------------------------------------------
Control # Servicing Subserv Strip Subservicer
Fees Fee
- ------------------------------------------------------------------
35 0.0775 0.0550 GE
118 0.0775 0.0400 First Union
119 0.0775 0.0400 First Union
33 0.0775 0.0550 CB
116 0.0775 0.0400 First Union
120 0.0775 0.1250 Arbor
121 0.0775 0.0750 GMAC
37 0.0775 0.0550 CB
213 0.0775 0.0750 GMAC
38 0.0775 0.0550 GE
39 0.0775 0.0550 CB
124 0.0775 0.1250 0.2350 Arbor
122 0.0775 0.0400 First Union
214 0.0775 0.0750 GMAC
126 0.0775 0.0400 First Union
125 0.0775 0.0400 First Union
40 0.0775 0.0550 CB
41 0.0775 0.0550 CB
217 0.0775 0.0750 GMAC
127 0.0775 0.0400 First Union
130 0.0775 0.0400 First Union
128 0.0775 0.0400 First Union
129 0.0775 0.0400 First Union
131 0.0775 0.0400 First Union
42 0.0775 0.0550 CB
43 0.0775 0.0550 CB
134 0.0775 0.0400 First Union
45 0.0775 0.0550 CB
135 0.0775 0.0400 First Union
136 0.0775 0.0400 First Union
46 0.0775 0.0550 CB
137 0.0775 0.0400 First Union
138 0.0775 0.0400 First Union
47 0.0775 0.0550 CB
140 0.0775 0.0400 First Union
141 0.0775 0.0400 First Union
48 0.0775 0.0550 CB
142 0.0775 0.0400 First Union
143 0.0775 0.0400 First Union
144 0.0775 0.0400 First Union
49 0.0775 0.0550 GE
145 0.0775 0.0400 First Union
147 0.0775 0.0400 First Union
148 0.0775 0.0400 First Union
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Total Pool
- ------------------------------------------------------------------------------------------------------------------------------------
Control # Property Name Address City State Zipcode
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
149 Brookshire Apartments 3915 Hunters Ridge Road Lansing MI 48911
52 Villa Del Sol 3225 Long Beach Blvd. Long Beach CA 90807
150 Terrace View VI 6800-C Hunt Club Road Blacksburg VA 24060
53 The Fountains of San Antonio 8630 Fairhaven San Antonio TX 78229
152 Kinsor Towers 1169 Ocean Avenue Brooklyn NY 11230
153 1112 M Street 1112 M Street Washington DC 20005
69 Greenwood Plaza State Road 23 and Ironwood Drive South Bend IN 46614
154 Lakeview Village Apartments 8831 North 96th Street Milwaukee WI 53224
155 Mark Greenville Apartments 481 Cypress Lane Greenville MS 38701
156 Palm Oasis Apartments 802 North 30th Street Phoenix AZ 85008
55 Island Breeze Apartments 1321-1325 Rosecrans Avenue Gardena CA 90247
91 Vernitron Building 1601 Precision Park Lane San Diego CA 92173
56 Sepulveda/Victory Center 6411 Sepulveda Blvd. Van Nuys CA 91406
59 Tuxedo Park Apartments 16548 NE Halsey Portland OR 97230
64 Comfort Inn - West -Amarillo 2001 South Coulter Road Amarillo TX 79106
57 Fox Plaza Shopping Center 131, 201, 231 San Pedro, S.E. Albuquerque NM 87110
58 Northwest Crossing Apartments 9640 & 9680 Timber Line Road Dallas TX 75220
158 Village @ Eland Route 113 & Ross Lane Phoenixville PA 19460
157 Discovery Zone Center 20-30 Backus Avenue Danbury CT 06810
63 Canyon Park Apartments 2454 West Campbell Avenue Phoenix AZ 85015
61 Charlestowne South Apartments 2119 Lumpkin Road Augusta GA 30906
60 Adams Square Apartments 229 South Adams Road Spokane WA 99216
62 Clubview Gardens Apartments 3333 Webb Chapel Extension Dallas TX 75220
160 Huntington Retirement Hotel 20920 Earl Street Torrance CA 90503
65 Woodhaven Apartments 1840 Killingsworth Road Augusta GA 30904
67 Factory Square 12 Water Street Mystic CT 06355
68 Elmwood Apartments 3593 Woodbrier Circle Tucker GA 30084
161 Waples Mobile Home Park Lee Higway (Route 29) at Via Drive Fairfax VA 22030
162 Royale Apartments 3593 Buford Highway Atlanta GA 30329
71 Arborwood Apartments 200 Muller Garden Tyler TX 75703
73 Comfort Inn - Airport - Little Rock 3200 Bankhead Little Rock AR 72206
72 Talla Villa Apartments 925 East Magnolia Drive Tallahassee FL 32301
76 Garden Breeze Apartments 415 South Mount Vernon Ave. San Bernadino CA 92410
74 Huntington Office Center 900 Walt Whitman Road Melville NY 11747
75 Highland Club Apartments Ponce de Leon Ave & Frederica St. Atlanta GA 30306
78 Donna/Ventura 19000-19030 Ventura Blvd. Tarzana CA 91356
166 Roebuck Shopping Center 9323-9333 Parkway East Birmingham AL 35215
167 The Courtyard 3600 Woodman Drive Grand Chute WI 54914
168 Fiesta Del Norte Shopping Center 6001 San Mateo Blvd. Alberquerque NM 87109
170 Stephenson Mill 322 East Colfax South Bend IN 46601
80 Fox Valley Apartments 513 Valley Avenue Birmingham AL 35209
171 2881-2883 Third Avenue 2881-2883 Third Avenue Bronx NY 10455
79 Morris Creek Apartments 982-B John Rolfe Drive Smithfield VA 23430
172 Angels for the Elderly 44, 48, 52 Angels Court Montgomery AL 36109
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
- -------------------------------------------------------------------------------------------------------------------------------
149 2,695,664.54 20,722.80 8.250 118 328 2/1/06 No 261 per unit
52 2,625,989.27 18,173.72 7.380 58 358 2/1/01 No 200 per unit
150 2,584,359.58 19,608.74 8.085 116 326 12/1/05 No 295 per unit
53 2,544,811.78 18,675.46 7.980 117 357 1/1/06 No 253 per unit
152 2,542,224.10 20,105.48 8.250 117 297 1/1/06 No 400 per unit
153 2,541,564.41 19,353.22 8.125 116 326 12/1/05 No 242 per unit
69 2,537,522.65 20,384.35 8.460 179 299 3/1/11 No 0
154 2,524,939.12 19,410.36 8.250 118 328 2/1/06 No 245 per unit
155 2,504,555.93 18,924.93 8.039 116 326 12/1/05 No 214 per unit
156 2,496,718.23 18,562.43 8.125 298 358 2/1/21 No 200 per unit
55 2,478,301.89 18,024.77 7.900 83 359 3/1/03 No 200 per unit
91 2,447,614.36 19,678.56 8.470 83 299 3/1/03 No 0
56 2,442,874.58 19,794.15 8.540 117 297 1/1/06 No 0
59 2,250,000.00 16,761.35 8.160 120 360 4/1/06 No 216 per unit
64 2,246,815.13 20,884.87 9.440 239 239 3/1/16 No 4 % of gross revenue
57 2,242,831.85 17,336.07 7.980 117 297 1/1/06 No 0
58 2,238,562.85 16,781.15 8.220 119 359 3/1/06 No 225 per unit
158 2,237,738.72 17,661.28 8.250 83 299 3/1/03 No .18 per sq. ft.
157 2,216,104.94 17,729.27 8.375 116 296 12/1/05 No .39 per sq. ft
63 2,200,000.00 16,589.77 8.290 120 360 4/1/06 No 200 per unit
61 2,197,073.67 16,234.94 8.060 178 358 2/1/11 No 250 per unit
60 2,196,989.50 16,020.30 7.920 118 358 2/1/06 No 275 per unit
62 2,158,523.99 15,714.01 7.910 119 359 3/1/06 No 225 per unit
160 2,098,165.52 17,803.23 9.125 119 299 3/1/06 No 301.71 per unit
65 1,997,941.04 15,608.96 8.130 119 299 3/1/06 No 250 per unit
67 1,900,568.90 14,500.35 8.210 57 333 1/1/01 No 350/unit & .34/sf
68 1,895,912.37 14,513.79 7.880 118 298 2/1/06 No 251 per unit
161 1,893,917.49 14,601.63 7.950 117 297 1/1/06 No 47 per unit
162 1,893,441.10 14,116.14 7.890 116 326 12/1/05 No 297 per unit
71 1,877,250.76 13,261.29 7.590 58 358 2/1/01 No 250 per unit
73 1,867,353.02 17,357.65 9.440 239 239 3/1/16 No 4 % of gross revenue
72 1,840,538.01 15,497.18 8.020 237 237 1/1/16 No 250 per unit
76 1,798,734.69 12,920.31 7.770 59 359 3/1/01 No 378 per unit
74 1,794,950.87 14,810.82 8.760 117 297 1/1/06 No 0
75 1,793,799.12 14,955.26 7.910 238 238 2/1/16 No 250 per unit
78 1,755,207.64 14,697.61 8.940 117 297 1/1/06 No 0
166 1,748,304.36 14,091.47 8.500 119 299 3/1/06 No .25 per sq. ft.
167 1,747,598.32 13,316.47 8.375 296 356 12/1/20 No 150 per unit
168 1,714,806.07 13,630.38 8.310 117 297 1/1/06 No .35 per sq. ft.
170 1,613,943.57 11,991.33 8.125 299 359 3/1/21 Yes 200 per unit
80 1,598,387.44 12,625.90 8.260 119 299 3/1/06 No 300 per unit
171 1,596,951.70 13,018.69 8.625 118 298 2/1/06 No .10 per sq. ft.
79 1,591,967.11 13,552.82 8.170 237 237 1/1/16 No 250 per unit
172 1,512,621.20 12,576.09 8.875 119 299 3/1/06 No 250 per unit
<CAPTION>
- ------------------------------------------------------------------
Control # Servicing Subserv Strip Subservicer
Fees Fee
- ------------------------------------------------------------------
149 0.0775 0.0400 First Union
52 0.0775 0.0550 CB
150 0.0775 0.0400 First Union
53 0.0775 0.0550 GE
152 0.0775 0.0400 First Union
153 0.0775 0.0400 First Union
69 0.0775 0.0550 CB
154 0.0775 0.0400 First Union
155 0.0775 0.0400 First Union
156 0.0775 0.0400 First Union
55 0.0775 0.0550 CB
91 0.0775 0.0550 CB
56 0.0775 0.0550 CB
59 0.0775 0.0550 CB
64 0.0775 0.0550 CB
57 0.0775 0.0550 GE
58 0.0775 0.0550 CB
158 0.0775 0.0400 First Union
157 0.0775 0.0400 First Union
63 0.0775 0.0550 GE
61 0.0775 0.0550 GE
60 0.0775 0.0550 GE
62 0.0775 0.0550 CB
160 0.0775 0.0400 First Union
65 0.0775 0.0550 GE
67 0.0775 0.0550 CB
68 0.0775 0.0550 CB
161 0.0775 0.0400 First Union
162 0.0775 0.0400 First Union
71 0.0775 0.0550 CB
73 0.0775 0.0550 CB
72 0.0775 0.0550 GE
76 0.0775 0.0550 CB
74 0.0775 0.0550 GE
75 0.0775 0.0550 GE
78 0.0775 0.0550 CB
166 0.0775 0.0400 First Union
167 0.0775 0.0400 First Union
168 0.0775 0.0400 First Union
170 0.0775 0.0400 First Union
80 0.0775 0.0550 GE
171 0.0775 0.0400 First Union
79 0.0775 0.0550 GE
172 0.0775 0.1250 Continental Wingate
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Total Pool
- ------------------------------------------------------------------------------------------------------------------------------------
Control # Property Name Address City State Zipcode
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
83 Comfort Inn - Oklahoma City 4017 N. W. 39th Expressway Oklahoma City OK 73112
81 North Hills Tropicana Apartments 15015 Parthenia Street North Hills CA 91343
174 Graystone Apartments 1109 San Marcus Parkway San Marcus TX 78667
173 Bull Run Mobile Home Park 7410 Old Centreville Rd. (Route 616) Manassas VA 22110
215 690 Gerard Avenue 690 Gerard Avenue Bronx NY 10451
176 Pinedale II Apartments 384 Cedar Street Menomonie WI 54028
185 Peachtree Avenue Apartments 23-25-26-29-33 Peachtree Avenue Atlanta GA 30305
179 Park East Apartments 508 San Pablo Drive Las Vegas NV 89119
180 1102-1130 Washington Street 1102-1130 Washington Street Boston MA 02116
182 Kendale 1037 Maiden Choice Lane Baltimore MD 21229
181 111 East 167th Street 111 East 167th Street Bronx NY 10452
186 Westgate Manor Apartments 7208 Southwest 34th Avenue Amarillo TX 79109
212 Morningstar 123 & 135 White Drive Tallahassee FL 32304
187 Omni Apartments 4602 54th Street, Lubbock County Lubbock TX 79414
85 Deer Park Apartments 87 Ruby Road Willington CT 06279
184 Riverloft 550-555 Pearl Street Reading PA 19602
110 Wisconsin Rapids - Int'l Paper 2810 Industrial Street Wisconsin Rapids WI 54495
188 St. Croix Apartments 200 Oak Street Woodville WI 54028
87 Fallbrook/Saticoy 7606 Fallbrook Ave. Canoga Park CA 91304
192 Western Oaks Apartments 4601 52nd Street, Lubbock County Lubbock TX 79414
191 Escondido Manor Apartments 4280 Escondido Street Las Vegas NV 89119
211 Pinecrest West 1380 Ocala Road Tallahassee FL 32304
88 Summit Grove Apartments 2326-2340 Lawrenceville Highway DeKalb County GA 30033
210 Castle Cove 2001-2057 Castle Drive Garland TX 75040
199 Rivertree Park 3627 Manchaca Road Austin TX 78704
195 101-109 State Street 101-109 State Street Boston MA 02109
90 Shoppers Landing 15 Main Street Freeport ME 04032
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
- -------------------------------------------------------------------------------------------------------------------------------
83 1,497,876.75 13,923.25 9.440 239 239 3/1/16 No 4 % of gross revenue
81 1,497,033.39 11,132.21 8.120 117 357 1/1/06 No 250 per unit
174 1,495,471.85 11,901.16 8.625 116 326 12/1/05 No 280 per unit
173 1,495,198.02 11,527.60 7.950 117 297 1/1/06 No 31 per unit
215 1,482,000.00 11,933.47 8.500 84 300 4/1/03 No 360 per unit
176 1,458,804.75 11,080.67 8.125 299 329 3/1/21 No 175 per unit
185 1,398,527.91 10,805.43 8.000 83 299 3/1/03 No 200 per unit
179 1,374,687.77 10,604.69 8.280 117 327 1/1/06 No 202 per unit
180 1,369,613.95 11,071.87 8.500 116 296 12/1/05 No .16 per sq. ft.
182 1,352,722.72 10,407.45 8.250 117 327 1/1/06 No 200 per unit
181 1,350,000.00 10,870.57 8.500 84 300 4/1/03 No 308 per unit
186 1,295,915.77 9,962.30 8.250 118 328 2/1/06 No 284 per unit
212 1,292,940.65 9,820.81 8.125 119 329 3/1/06 No 206 per unit
187 1,292,920.59 9,939.27 8.250 118 328 2/1/06 No 258 per unit
85 1,277,685.85 9,896.57 8.560 57 357 1/1/01 No 250 per unit
184 1,263,034.20 9,919.14 8.500 119 329 3/1/06 No 255 per unit
110 1,173,930.82 9,764.18 8.880 119 299 3/1/06 No .10 per sq. ft.
188 1,138,825.44 8,893.31 8.125 299 299 3/1/21 No 175 per unit
87 1,106,771.75 8,967.96 8.540 117 297 1/1/06 No 0
192 1,025,160.05 7,786.83 8.125 119 329 3/1/06 No 267 per unit
191 1,019,543.47 7,865.02 8.280 117 327 1/1/06 No 240 per unit
211 1,019,164.96 7,741.29 8.125 119 329 3/1/06 No 308 per unit
88 998,386.98 8,621.35 8.410 239 239 3/1/16 No 250 per unit
210 907,041.10 7,825.35 8.375 118 238 2/1/06 No 276 per unit
199 830,000.00 6,840.72 8.780 120 300 4/1/06 No 293 per unit
195 797,705.55 6,509.35 8.625 117 297 1/1/06 No .27 per sq. ft.
90 748,657.04 6,293.97 9.000 82 298 2/1/03 No 0
Totals/Wtg.
Averages: -------------- ------------ ------ --- ---
159 Loans 647,219,459.07 4,999,601.43 8.2168 119 324
<CAPTION>
- ------------------------------------------------------------------
Control # Servicing Subserv Strip Subservicer
Fees Fee
- ------------------------------------------------------------------
83 0.0775 0.0550 CB
81 0.0775 0.0550 CB
174 0.0775 0.0400 First Union
173 0.0775 0.0400 First Union
215 0.0775 0.0400 First Union
176 0.0775 0.0400 First Union
185 0.0775 0.0400 First Union
179 0.0775 0.0400 First Union
180 0.0775 0.0400 First Union
182 0.0775 0.0400 First Union
181 0.0775 0.0400 First Union
186 0.0775 0.0400 First Union
212 0.0775 0.0400 First Union
187 0.0775 0.0400 First Union
85 0.0775 0.0550 CB
184 0.0775 0.0400 First Union
110 0.0775 0.0400 First Union
188 0.0775 0.0400 First Union
87 0.0775 0.0550 CB
192 0.0775 0.0400 First Union
191 0.0775 0.0400 First Union
211 0.0775 0.0400 First Union
88 0.0775 0.0550 CB
210 0.0775 0.0400 First Union
199 0.0775 0.0400 First Union
195 0.0775 0.0400 First Union
90 0.0775 0.0550 CB
</TABLE>
Note:
"Servicing Fees" includes Master Servicing Fee and Trustee Fee
<PAGE>
<PAGE>
EXHIBIT C
MLMI 1996-C1
Form of Schedule of Exceptions to Mortgage File Delivery
Exception
Control No. Borrower Name Document ID Document Status Description
- ----------- --------------- ----------- --------------- -----------
C-1
<PAGE>
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
________, 199_
Bankers Trust Company of California, N.A.
3 Park Plaza
16th Floor
Irvine, California 92714
(Attention: MLMI Series 1996-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 April
1, 1996 (the "Pooling and Servicing Agreement"), by and among Merrill Lynch
Mortgage Investors, Inc., as depositor, GE Capital Asset Management Corporation,
as master servicer, GE Capital Realty Group, Inc., 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):
_____________ 1. Mortgage Loan paid in full.
D-1-1
<PAGE>
<PAGE>
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 returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
D-1-2
<PAGE>
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
GE Capital Asset Management
Corporation, as Master Servicer
By:___________________
Name:
Title
D-1-3
<PAGE>
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
________, 199_
Bankers Trust Company of California, N.A.
3 Park Plaza
16th Floor
Irvine, California 92714
(Attention: MLMI Series 1996-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 April
1, 1996 (the "Pooling and Servicing Agreement"), by and among Merrill Lynch
Mortgage Investors, Inc., as depositor, GE Capital Asset Management Corporation,
as master servicer and GE Capital Realty Group, Inc., 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:
D-2-1
<PAGE>
<PAGE>
Reason for requesting file (or portion thereof):
_____________ 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 returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case 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.
GE Capital Realty Group, Inc.,
as Special Servicer
By: _______________________________
Name:
Title:
D-2-2
<PAGE>
<PAGE>
EXHIBIT E-1
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Operating Income" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
reserves (such as reserves for tenant improvements and leasing commissions in
the case of Rental Properties and assumed reserves for ongoing capital
expenditures). Net cash flow 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 Net Operating Income for each
Rental Property, the Special Servicer shall rely on the most recent rent roll
supplied by the related borrower and where the actual vacancy shown thereon and
the market vacancy is less than 5%, the Special Servicer shall assume a 5%
vacancy in determining revenue from rents, except that in the case of certain
anchored shopping centers, space occupied by anchor tenants shall be disregarded
in performing the vacancy adjustment due to the length of the related leases or
creditworthiness of such tenants, in accordance with the respective Mortgage
Loan Seller's underwriting standards. In determining rental revenue for
multifamily properties, the Special Servicer shall either review rental revenue
shown on the rolling 12-month operating statements or annualize the rental
revenue shown on rent rolls or operating statements with respect to the prior
three to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent rent roll,
after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average daily occupancy shown on the borrower-supplied operating
statements. In the case of residential health care facilities, receipts shall be
based on historical occupancy levels, historical operating revenues and the then
current occupancy rates. Private occupancy rates shall be within current market
ranges and vacancy levels shall be at a minimum of 5%. In general, any
non-recurring items and non-property related revenue shall be eliminated from
the calculation except in the case of residential health care facilities.
In determining the "expense" component of Net Operating Income for each
Mortgaged Property, the Special Servicer shall rely on the most recent financial
statements supplied by the related borrower, except that (a) if tax or insurance
expense information more current than that reflected in the financial statements
is available, the newer information shall be annualized and used, (b) with
respect to
E-1-1
<PAGE>
<PAGE>
each Mortgaged Property, property management fees shall be assumed to
be 4% to 5% of effective gross revenue (except with respect to hospitality
properties, where a minimum of 5% of gross receipts shall be assumed) unless
actual management fees are higher, in which case actual management fees shall be
assumed, (c) assumptions shall be made with respect to reserves for leasing
commission, tenant improvement expenses and capital expenditures and (d)
expenses shall be assumed to include annual replacement reserves equal to (1) in
the case of properties which are not residential properties, hospitality
properties or residential health care facilities, not less than $0.10 and not
more than $0.68 per square foot net rentable area, (2) in the case of
multifamily properties, not less than $150 or more than $435 per unit per year,
depending on the condition of the property, (3) in the case of hospitality
properties, 4% of the gross receipts shown on the most recent full-year
financial statements, (4) in the case of residential healthcare facilities, $250
to $301.71 per bed per year and (5) in the case of the mobile home parks, not
less than $31 or more than $50 per pad per year. In addition, in some instances,
the Special Servicer may recharacterize as capital expenditures those items
reported by borrowers as operating expenses (thus increasing "net operating
income") where determined appropriate.
E-1-2
<PAGE>
<PAGE>
EXHIBIT E-2
MLMI 1996-C1
FORM OF UPDATED MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Balance Terms
as of Cut-Off Date Current Terms As of Cut-Off Date
------------------ ------------------------------------ ------------------
Loan Id. Property City State Balance Rate Term Amort Balance Rate Effect. Term Amort Loan Total Total
Name Net Rate Type Revenue Expenses
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
E-2-1
<PAGE>
<PAGE>
EXHIBIT E-2
MLMI 1996-C1
FORM OF UPDATED MORTGAGE LOAN SCHEDULE
(Continued)
<TABLE>
<CAPTION>
As of Cut-Off Date Most Current
- ----------------------------------- --------------------------------------------------------------------------------------
Replacement NOI Year of DSCR Property Total Total Replacement NOI Year of DSCR Appraised Appraisal Appraised
Reserves (noi- Finan- Type Revenue Expenses Reserves (noi- Financial Value Year LTV
reserves) cial reserves)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
E-2-2
<PAGE>
<PAGE>
EXHIBIT E-2
MLMI 1996-C1
FORM OF UPDATED MORTGAGE LOAN SCHEDULE
(Continued)
<TABLE>
<CAPTION>
Retail Properties
----------------------------
Occupancy Occupancy as Largest Largest Tenant % Lease Cumulative Date of Status
Percentage of Date Retail Tenant of Expiration % of Pool Modification
Tenant Sq Ft Property Date as of
Name Cutoff
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
As of Cut-Off Date
- --------------------------------
Times Times Times Specially Workout/ In
Delinquent Delinquent Delinquent Serviced Modification Foreclosure
30 days 60 days 90 days
<S> <C> <C> <C> <C> <C>
</TABLE>
E-2-3
<PAGE>
<PAGE>
EXHIBIT E-2
MLMI 1996-C1
FORM OF UPDATED MORTGAGE LOAN SCHEDULE
(Continued)
In REO
Bankruptcy
E-2-4
<PAGE>
<PAGE>
EXHIBIT F
- --------------------------------------------------------------------------------
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)/
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
- --------------------------------------------------------------------------------
Letter of Representations
[To be Completed by Issuer and Trustee]
Merrill Lynch Mortgage Investors, Inc.
--------------------------------------
[Name of Issuer]
Bankers Trust Company of California, N.A.
-----------------------------------------
[Name of Trustee]
April 3, 1996
-------------
(Date)
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street, 49th Floor
New York, NY 10041-0099
Re: Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1996-C1,
Class A-1, Class A-2, Class A-3, Class A-PO, Class B, Class C, Class D,
-----------------------------------------------------------------------
(Issue Description)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Trustee will act as
trustee with respect to the Securities pursuant to a Pooling and Servicing
Agreement dated as of April 1, 1996 (the "Document"). Merrill Lynch, Pierce
Fenner & Smith Incorporated and First Union Capital Markets ("Underwriters") are
distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with its Rules with respect to the Securities, Issuer
and Trustee make the following representations to DTC:
1. Prior to closing on the Securities on April 3, 1996, there shall be
deposited with DTC one Security certificate
F-1
<PAGE>
<PAGE>
registered in the name of DTC's nominee, Cede & Co., for each class of the
Securities in the actual or notional principal amounts set forth on Schedule A
hereto, the total of which represents 100% of the actual or notional principal
amount of such Securities. If, however, the aggregate actual or notional
principal amount of any class exceeds $200 million, one certificate will be
issued with respect to each $200 million of actual or notional principal amount
and an additional certificate will be issued with respect to any remaining
actual or notional principal amount. Each $200 million certificate shall bear
the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Trustee or its agent 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.
2. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Trustee shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date to DTC not less than 15 calendar days in advance of such record
date. Notices to DTC pursuant to this Paragraph by telecopy shall be sent to
DTC's Reorganization Department at (212) 709-6896 or (212) 709-6897, and receipt
of such notices shall be confirmed by telephoning (212) 709-6870. Notices to DTC
pursuant to this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 4.
3. In the event of the retirement of all outstanding Securities (a "full
reduction"), Trustee shall send a notice to DTC not less than 30 days nor more
than 60 days prior to the retirement date. Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before such 30-60 day time period described above.
Trustee shall forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method
F-2
<PAGE>
<PAGE>
to verify subsequently the use of such means and the timeliness of such notice).
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (516) 227-4039 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516) 227-4070. Notices
to DTC pursuant to this Paragraph by mail or by any other means shall be sent
to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
4. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
5. Trustee shall send DTC written notice with respect to the dollar
amount per $1,000 original actual or notional principal amount (or other minimum
authorized denomination if less than $1,000 original actual or notional
principal amount) payable on each payment date allocated as to the interest and
principal portions thereof preferably 5, but not less than 2, business days
prior to such payment date or in accordance with the existing arrangements
between Trustee and DTC. Such notices, which shall also contain the current pool
factor and Trustee contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (212) 709-1723, or if by mail or by any
other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
6. [The interest accrual period is record date to record date.]
7. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns in same-day funds on each payment date (or the
equivalent in accordance with existing arrangements between Trustee and DTC,
provided that in connection with the final payment of the Securities, the
Securities of each class are first presented and surrendered to the Trustee).
Such payments shall be made payable to the order of Cede & Co. Absent any other
existing arrangements, such payments shall be addressed as follows:
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<PAGE>
<PAGE>
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
7 Hanover Square; 24th Floor
New York, NY 10004-2695
8. [Note: Issuer must represent one of the following, and cross out the
other:]
Securities Eligible for DTC's Same-Day Funds Settlement ("SDFS")
System.
Other principal payments (redemption payments) shall be made in
same-day funds by Trustee in the manner set forth in the SDFS Paying Agent
Operating Procedures, a copy of which previously has been furnished to Trustee.
9. DTC may direct Issuer or Trustee to use any other number or address
as the number or address to which notices or payments of interest or principal
may be sent.
10. In the event of a full reduction, acceleration, or any other similar
transaction necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Trustee to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Trustee prior to payment, if
required.
11. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities or in the event
holders of the Securities make such determination, Trustee shall, after
notification of such determination, notify DTC of the availability of
certificates. In such event, Trustee shall issue, transfer, and exchange
certificates in appropriate amounts, as required by DTC and others. For such
purposes, the Trustee may conclusively rely on a Securities Position Listing
provided by DTC as to the DTC Participants with respect to the Securities.
12. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Trustee (at which time DTC will confirm with Issuer or Trustee the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Trustee shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts. For such
purposes, the Trustee may conclusively rely on a Securities
F-4
<PAGE>
<PAGE>
Position Listing provided by DTC as to the DTC Participants with respect to the
Securities.
13. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
14. Nothing herein shall be deemed to require Trustee to advance funds
on behalf of Issuer.
15. There will be no case in which a partial retirement or an invitation
to tender the Securities will occur.
16. DTC is hereby authorized to provide, and hereby agrees to provide to
the Issuer and the Trustee for its customary fee, Securities Position Listing of
DTC Participants with respect to the Securities from time to time at the request
of the Issuer or the Trustee.
17. This Letter of Representations may be executed in one or more
counterparts.
18. DTC represents, pursuant to its Rules, to the Issuer and Trustee:
DTC will take any action permitted to be taken by a holder of a
Security under the Document only at the direction of one or more
of its participating organizations ("Participants") to whose
account with DTC an undivided interest in the Security is
credited. DTC will take any such action that it is so directed to
take only with respect to the portion of the Security represented
by the undivided interest therein of the Participant(s) giving
such direction. DTC may take conflicting actions with respect to
the portion of the Security represented by other undivided
interests therein to the extent that such actions are taken on
behalf of Participants whose holdings include such undivided
interests.
19. Issuer and Trustee recognize that DTC does not in any way undertake
to, and shall not have any responsibility to, monitor or ascertain whether a
transfer of Securities could give rise to a transaction prohibited or not
otherwise permissible under the Employee Retirement Income Security Act of 1974
or under Section 4975 of the Internal Revenue Code of 1986. Issuer and Trustee
acknowledge that: a) so long as Cede & Co. is the sole record owner of the
Securities, it shall be entitled to all
F-5
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<PAGE>
voting rights in respect thereof and to receive the full amount of all
principal, premium, if any, and interest payable with respect thereto; and b)
DTC shall treat any DTC Participant having Securities credited to its DTC
accounts as entitled to the full benefits of ownership of such Securities even
if the crediting of such Securities to the DTC accounts of such Participant
results from transfers or failures to transfer in violation of such laws. (The
treatment by DTC of the effects of the crediting by it of Securities to the
accounts of DTC Participants shall not affect the rights of Issuer or
purchasers, sellers, or holders of Securities against any DTC Participant.)
Notes: Very truly yours,
A. If there is a Trustee (as defined in Merrill Lynch Mortgage Investors,
this Letter of Representations), Trustee as Inc.
well as Issuer must sign this Letter. If (Issuer)
there is no Trustee, in signing this Letter
Issuer itself undertakes to perform all of By:_______________________________
the obligations set forth herein. (Authorized Officer's Signature)
B. Schedule B contains statements that DTC Bankers Trust Company of
believes accurately describe DTC, the California, N.A., as Paying Agent
method of effecting book-entry transfers of (Trustee)
securities distributed through DTC, and
certain related matters. By:_____________________________
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:____________________________
cc: Underwriter
Underwriter's Counsel
F-6
<PAGE>
<PAGE>
Principal and Income Payments Rider
1. This Rider supersedes any contradictory language set forth in the
Letter of Representations to which it is appended.
2. With respect to principal and income payments in the Securities:
A. DTC shall receive all dividend and interest payments on payable
date in same-day funds by 2:30 p.m. ET (Eastern Time).
B. Issuer agrees that it or Agent shall provide dividend and
interest payment information to a standard announcement service
subscribed to by DTC. In the unlikely event that no such service
exists, Issuer agrees that it or Agent shall provide this
information directly to DTC in advance of the dividend or
interest record date as soon as the information is available.
This information should be conveyed directly to DTC
electronically. If electronic transmission is not possible, such
information should be conveyed by telephone or facsimile
transmission to:
The Depository Trust Company
Manager, Announcements
Dividend Department
7 Hanover Square, 22nd Floor
New York, NY 10004
Phone: (212) 709-1270
Fax: (212) 709-1723, 1686
C. Issuer agrees that for dividend and interest payments, it or
Agent shall provide automated notification of CUSIP-level detail
to the depository no later than noon ET on the payment date.
D. DTC shall receive maturity and redemption payments and
CUSIP-level detail on the payable date in same-day funds by 2:30
p.m. ET. Absent any other arrangements between Agent and DTC,
such payments shall be wired according to the following
instructions:
Chemical Bank
ABA 021000128
For credit to A/C Depository Trust Company
Redemption Account 066-027306
F-7
<PAGE>
<PAGE>
in accordance with existing SDFS payment procedures in the
manner set forth in DTC's SDFS Paying Agent Operating
Procedures a copy of which has previously been furnished to
Agent.
E. DTC shall receive all other payments and CUSIP-level detail
resulting from corporate actions (such as tender offers or
mergers) on the first payable date in same-day funds by 2:30
p.m. ET. Absent any other arrangements between the Agent and
DTC, such payments shall be wired to the following address:
Chemical Bank
ABA 021000128
For credit to A/C Depository Trust Company
Reorganization Account 066-027608
F-8
<PAGE>
<PAGE>
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial
F-9
<PAGE>
<PAGE>
Owner") is in turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to Cede & Co. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such
issue to be redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose accounts
the Securities are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to
DTC. DTC's practice is to credit Direct Participants' accounts on payable date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payment on payable date. Payments
by Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of
F-10
<PAGE>
<PAGE>
such Participant and not of DTC, the Agent, or the Issuer, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal and interest to DTC is the responsibility of the Issuer or
the Agent, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to the [Tender/Remarketing]
Agent, and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to the [Tender/Remarketing] Agent. The requirement for physical
delivery of Securities in connection with a demand for purchase or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to the
Issuer or the Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to be
printed and delivered.
11. The Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Issuer believes to be reliable,
but the Issuer takes no responsibility for the accuracy thereof.
F-11
<PAGE>
<PAGE>
THE DEPOSITORY TRUST COMPANY
55 Water Street (19th floor)
New York, New York 10041
Attention: Underwriting Department Manager
Phone: (212) 558-8536
Telecopy: (212) 344-1533
SAFEKEEPING AGREEMENT
Ref: (Description of issue, number of certificates, number of CUSIPs assigned to
issue and $ value of securities)
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-
Through Certificates, Series 1996-C1 Class A-1, Class A-2, Class A-3, Class
A-PO, Class B, Class C, Class D, (See attached Schedule A for CUSIP Nos.)
CUSIP
The Depository Trust Company (DTC) acknowledges receipt from
Bankers Trust Company of California, N.A. (the trustee, transfer agent,
underwriter or other agent or the issuer, hereinafter referred to as the
"Agent") of possession, custody and control of the above securities for
safekeeping. DTC is authorized to hold these securities in safekeeping until DTC
is instructed by telephone or in writing by one of the below designated
representatives of the Agent either to: (1) deliver the securities by book-entry
to the DTC account of the lead underwriter (or to the DTC account of its
clearing agent) or (2) return the said securities to the Agent.
In the event DTC is instructed to return said securities, DTC shall
return the securities to the Agent as soon as practicable, but, in any event, no
later than the DTC business day following the day such instruction is received.
DTC shall hold the Agent, its officers and employees, harmless from any
liability, loss, damage, and reasonable expense of any kind in connection with
any loss, damage, theft or destruction of any kind of said securities while they
are in the possession, custody or control of DTC, its officers or employees or
in the event securities are released from the control of DTC
F-12
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<PAGE>
without the specific approval of the Agent pursuant to this Safekeeping
Agreement.
Bankers Trust Company of The Depository Trust Company
California, N.A.
The Agent
By:___________________________ By:_________________________
Trustee for Merrill
Lynch Mortgage Investors,
Inc., MPTC, Series 1995-C1
Title: Vice President Title:_______________________
Date:__________________________ Date:________________________
Authorized Representative
of Trustee/Agent
Bankers Trust Company
Holly Holland of California, N.A. (714) 253-7584
- -------------------------- ---------------------- --------------
Print Name Organization Telephone No.
DTC accepts authorization of closings on the phone numbers listed below:
(212) 558-8529 (212) 558-8530
(212) 558-8542 (212) 558-8549
F-13
<PAGE>
<PAGE>
SCHEDULE A
Merrill Lynch Mortgage Investors, Inc.
Mortgage Pass-Through Certificates
Series 1996-C1
<TABLE>
<CAPTION>
Designation CUSIP No. Rate Denomination Maturity Date
----------- --------- ---- ------------ -------------
<S> <C> <C> <C> <C>
Class A-1, No. 1 589-929-LJ5 7.15% $182,300,000 April 25, 2028
Class A-2, No. 1 589-929-LK2 7.24% 27,813,000 April 25, 2028
Class A-3, No. 1 589-929-LL0 7.42% 200,000,000 April 25, 2028
Class A-3, No. 2 589-929-LL0 7.42% 26,505,616 April 25, 2028
Class B, No. 1 589-929-LM8 7.42% 38,833,000 April 25, 2028
Class C, No. 1 589-929-LN6 7.42% 38,833,000 April 25, 2028
Class D, No. 1 589-929-LP1 7.42% 32,361,000 April 25, 2028
Class A-PO, No. 1 589-929-LQ9 N/A 254,384 April 25, 2028
</TABLE>
F-14
<PAGE>
<PAGE>
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
______ __, 199_
Bankers Trust Company of California, N.A.
[Address]
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-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 April 3, 1996 (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 April 1, 1996,
among Merrill Lynch Mortgage Investors, Inc., as depositor, GE Capital Asset
Management Corporation, as master servicer, GE Capital Realty Group, Inc., as
special servicer, and Bankers Trust Company of California, N.A., 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
accept 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
G-1-1
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<PAGE>
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) 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:_______________________
G-1-2
<PAGE>
<PAGE>
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
______ __, 199_
Bankers Trust Company of California, N.A.
[Address]
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-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 April 3, 1996 (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 April 1, 1996,
among Merrill Lynch Mortgage Investors, Inc., as depositor, GE Capital Asset
Management Corporation, as master servicer, GE Capital Realty Group, Inc., as
special servicer, and Bankers Trust Company of California, N.A., 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
G-2-1
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<PAGE>
made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the Pooling
and Servicing Agreement, and (d) any credit enhancement mechanism
associated with the Certificates, that it has requested.
Very truly yours,
_____________________________
(Transferee)
By:__________________________
Name:________________________
Title:_______________________
G-2-2
<PAGE>
<PAGE>
ANNEX 1 TO EXHIBIT G-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 Bankers Trust Company of California, N.A. 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 $ / (1) 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) 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.
- ---------------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer,
G-2-3
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<PAGE>
and, in that case, Transferee must own and/or invest on, a discretionary basis
at least $10,000,000 in securities.
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.) ______________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
G-2-4
<PAGE>
<PAGE>
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the 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 it
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 Transferor and other parties related to the Transferred
Certificate 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
Yes No Transferred Certificate only for the
Transferee's own account?
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
G-2-5
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<PAGE>
reaffirmation of this certification as of the date of such 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: __________________________
__________________________
Date: __________________________
G-2-6
<PAGE>
<PAGE>
ANNEX 2 TO EXHIBIT G-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 Bankers Trust Company of California, N.A., 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).
G-2-7
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<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment I 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
Yes No Transferred Certificate only for the
Transferee's own account?
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 (if such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.)
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
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<PAGE>
<PAGE>
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: ___________________________
G-2-9
<PAGE>
<PAGE>
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR non-QIBs
______ __, 199_
Bankers Trust Company of California, N.A.
3 Park Plaza
16th Floor
Irvine, California 92714
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificate, Series 1996-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 April 3, 1996 (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
April 1, 1996, among Merrill Lynch Mortgage Investors, Inc., as depositor (the
"Depositor"), GE Capital Asset Management Corporation, as master servicer, GE
Capital Realty Group, Inc., as special servicer, and Bankers Trust Company of
California, N.A., 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 1993, 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
G-3-1
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<PAGE>
qualified pursuant to any applicable state securities laws or (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 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 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 THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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.]
- OR -
[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 INTERNAL REVENUE CODE OF 1986
(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
G-3-2
<PAGE>
<PAGE>
INSURANCE COMPANY USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY
CONSTITUTE "PLAN ASSETS" OF A PLAN) PROVIDED THAT SUCH A TRANSFER 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.]
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 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.
G-3-3
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<PAGE>
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) or (3) 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:_______________________
G-3-4
<PAGE>
<PAGE>
EXHIBIT H
FORM OF TRANSFEREE LETTER
_____ __, 199_
Bankers Trust Company of California, N.A.
3 Park Plaza
16th Floor
Irvine, California 92714
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1,
Classes (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 April 3, 1996 (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 April 1, 1996 (the "Pooling and Servicing Agreement"),
among Merrill Lynch Mortgage Investors, Inc., as depositor, GE Capital Asset
Management Corporation, as master servicer, GE Capital Realty Group, Inc., as
special servicer, and Bankers Trust Company of California, N.A., as trustee (the
"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.
H-1
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate
as of the date first written above.
[Name of Transferee]
By:__________________________
Name:________________________
Title:_______________________
H-2
<PAGE>
<PAGE>
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
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 1996-C1, Class [R-I, R-II, R-III] evidencing a 100%
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 April
1, 1996, among Merrill Lynch Mortgage Investors, Inc., as Depositor, GE
Capital Asset Management Corporation as Master Servicer, GE Capital
Realty Group, Inc., as Special Servicer, and Bankers Trust Company of
California, N.A., 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 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
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<PAGE>
<PAGE>
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 from sources
without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States.
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 Internal Revenue Code of 1986 that
applies to all transfers of the Class [R-I, R-II, R-III] Certificates
after March 31, 1988; (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 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
I-1-2
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<PAGE>
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 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
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<PAGE>
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".
I-1-4
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<PAGE>
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, by its Managing Director 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.
/s/
______________________________________
NOTARY PUBLIC
COUNTY OF ______________
STATE OF _______________
My Commission expires the
____ day of _____________, 19__.
I-1-5
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<PAGE>
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
________, 199_
Bankers Trust Company
3 Park Plaza
16th Floor
Irvine, California 92714
(Attention: MLMI Series 1996-C1)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1, Class [R-I,
R-II, R-III], evidencing a 100% 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 April 1, 1996, among
Merrill Lynch Mortgage Investors, Inc., as depositor, GE Capital Asset
Management Corporation, as master servicer, GE Capital Realty Group, Inc., as
special servicer, and Bankers Trust Company of California, N.A., as trustee. All
terms used herein and not otherwise defined shall have the meanings set
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<PAGE>
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.
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 I-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,
By:______________________________
Name:
Title:
I-2-2
<PAGE>
<PAGE>
Exhibit J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
________, 199_
Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement dated as of April 1, 1996 relating to Merrill Lynch
Mortgage Investors Inc., Mortgage Pass-Through Certificates, Series 1996-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 delivers to Bankers
Trust Company of California, N.A., 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.
J-1-1
<PAGE>
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
Bankers Trust Company of California, N.A.
By: ______________________________
Title:
____________________________
J-1-2
<PAGE>
<PAGE>
Receipt acknowledged:
Fitch Investors Servicer, L.P. Standard & Poor's Ratings
Services
By: ___________________________ By: _________________________
Title: ________________________ Title: ______________________
Date: _________________________ Date: _______________________
J-1-3
<PAGE>
<PAGE>
EXHIBIT J-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
________, 199_
Bankers Trust Company of California, N.A., as Trustee
3 Park Plaza
16th Floor
Irvine, California 92714
Attention: MLMI Series 1996-C1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as
of April 1, 1996 relating to Merrill Lynch Mortgage Investors Inc., Mortgage
Pass-Through Certificates, Series 1996-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 3.23(b) as
if it were the Special Servicer thereunder.
_____________________________
By: _________________________
Name: _______________________
Title: ______________________
J-2-1
<PAGE>
<PAGE>
EXHIBIT K
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
Important - Read instructions on back before filling out form
<TABLE>
<S> <C> <C>
This FINANCING STATEMENT is presented to a No. of 3.[] The Debtor is a
Filing Officer for filing pursuant to the Additional transmitting utility.
Uniform Commercial Code Sheets
Prepared:
- ----------------------------------------------- ---------------- ----------------------------------
1. Debtor(s) (Last Name First) 2. Secured Party(ies) 4.[] For Filing Officer:
and Address(es): Name(s) and Address(es) Date, Time, No. Filing Office
- --------------------------------- ------------------------------ ----------------------------------
6.[] Assignee(s) of
5. This Financing Statement covers the following types (or Secured Party and
items) of property: Address(es)
7.[] The described crops
are growing or to be
grown on:*
[] The described goods
are or are to be affixed
to:*
[] The lumber to be cut
or minerals or the like
(including oil and gas)
is on:*
[] Products of the Collateral are also covered. *(Describe Real Estate
Below)
- ----------------------------------------------------------------
8. Describe Real [ ] This statement is 9. Name of a
Estate Here: to be indexed in Record
the Real Estate Owner
Records:
No. & Street Town or City County Section Block Lot
- ------------------------ ----------------------- ----------------- --------- --------- ---------
10. This statement is filed without the debtor's signature to perfect a security interest in
collateral (check appropriate box)
[ ] under a security agreement signed by debtor authorizing secured party to file this statement, or
[ ] which is proceeds of the original collateral described above in which a security interest was perfected, or
[ ] acquired after a change of name, identity of corporate structure of the debtor, or
[ ] as to which the filing has lapsed, or already subject to a security interest in another jurisdiction:
[ ] when the collateral was brought into the state, or [ ] when the debtor's location was changed to this state.
- ---------------------------------------------- ----------------------------------------------
By ___________________________________________ By ___________________________________________
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
</TABLE>
(1) Filing Officer Copy-Numerical
K-1
<PAGE>
<PAGE>
Standard Form - Form UCC-1 - Approved by Secretary of State of New York
K-2
<PAGE>
<PAGE>
EXHIBIT A
This Exhibit A is attached to and incorporated in a financing statement
pertaining to MERRILL LYNCH MORTGAGE INVESTORS, INC., as Depositor (referred to
as the "Debtor" for the purpose of this financing statement only), and Bankers
Trust Company of California, N.A., as trustee for the holders of the Series
1996-C1 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement
dated as of April 1, 1996 (the "Pooling and Servicing Agreement"), among the
Debtor, GE Capital Asset Management Corporation as master servicer (in such
capacity, the "Master Servicer"), GE Capital Realty Group, Inc., as special
servicer (in such capacity, the "Special Servicer"), and the Secured Party,
relating to the issuance of the Debtor's Mortgage Pass-Through Certificates,
Class A-1, Class A-2, Class A-3, Class A-PO, Class B, Class C, Class D, Class E,
Class F, Class G, Class IO, Class R-I, Class R-II and Class R-III Series 1996-C1
(collectively, the "Series 1996-C1 Certificates"). Capitalized terms used herein
and not defined shall have the respective meanings given to them in the Pooling
and Servicing Agreement. The attached financial statement covers all of the
Debtor's right (including the power to convey title thereto), title and interest
in and to the Trust Fund created by the Pooling and Servicing Agreement,
consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Mortgage Loan Schedule to the Pooling
and Servicing Agreement, which Mortgage Loan Schedule is attached hereto
as Exhibit C;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each
other document in the related Mortgage File;
4. (a) the Certificate Account created by the Master Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from time
to time on deposit in the Certificate Account, (c) the investments of
any such funds consisting of securities, instruments or other
obligations (including the Permitted Investments described on Exhibit B
hereto), and (d) the general intangibles consisting of the contractual
right to payment, including the right to payments of principal and
interest and the right to enforce the related payment obligations,
arising from or under any such investments;
5. All REO Property;
K-3
<PAGE>
<PAGE>
6. (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the REO Account, (c) the investments of
any such funds consisting of securities, instruments or other
obligations (including the Permitted Investments described on Exhibit B
hereto), and (d) the general intangibles consisting of the contractual
right to payment, including the right to payments of principal and
interest and the right to enforce the related payment obligations,
arising from or under any such investments;
7. (a) the Reserve Account(s) maintained by the Master Servicer
or Special Servicer pursuant to the Pooling and Servicing Agreement, and
(b) all funds from time to time on deposit in the Reserve Account(s);
8. (a) the Distribution Account created by the Trustee pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to time
on deposit in the Distribution Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations
(including the Permitted Investments described on Exhibit B hereto), and
(d) the general intangibles consisting of the contractual right to
payment, including the right to payments of principal and interest and
the right to enforce the related payment obligations, arising from or
under any such investments;
9. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Pooling and Servicing Agreements, transferred to the
Trust Fund and to be serviced by the Master Servicer or Special
Servicer; and
10. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or substitutions
therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY
THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER DOCUMENTS IN THE RELATED
MORTGAGE FILES EVIDENCED BY THE SERIES 1996-C1 CERTIFICATES, AND THIS FILING
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT OCCURRED. THE
REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER
DOCUMENT IN A MORTGAGE FILE. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, PERMITTED
INVESTMENTS) SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SECURITY,
INSTRUMENT OR
K-4
<PAGE>
<PAGE>
OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT) IS
NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN
THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE
JURISDICTION, NOR SHOULD THIS FINANCIAL STATEMENT BE CONSTRUED AS A CONCLUSION
THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SECURITY, INSTRUMENT OR OTHER OBLIGATION
(INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH RESPECT TO THE
FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD
PARTIES.
K-5
<PAGE>
<PAGE>
EXHIBIT B
The term "Permitted Investments" shall include any of the
following securities or obligations:
(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 by
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 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 rating category of each of Fitch, if rated by
Fitch, 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
very or change. Interest may either by 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 relied upon for a fixed yield;
(iii) 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
K-6
<PAGE>
<PAGE>
original maturities of not more than 365 days), the
short term obligations of which are rated in the highest
rating category of each of Fitch, if rated by Fitch, 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 very or
change. Interest may either by 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 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 (or if
not so incorporated, the commercial paper is United
States Dollar denominated and amounts payable thereunder
are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the
highest rating category of each of Fitch, if rated by
Fitch, and Standard & Poor's. 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 very or change. Interest may either
by 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 relied upon for a fixed yield;
(v) units of money market funds rated in the highest rating
category of both Fitch, if rated by Fitch, and AAAm or
AAAm-G by Standard & Poor's and which maintain a
constant net asset value;
(vi) any other obligation or security acceptable to each
Rating Agency, evidence of which acceptability shall be
provided in writing by each
K-7
<PAGE>
<PAGE>
Rating Agency to the Master Servicer, the Special
Servicer and the Trustee;
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.
K-8
<PAGE>
<PAGE>
EXHIBIT L
Form of Schedule of Certificateholders
Initial
Class Certificate Balance Name of Holder Address
----- ------------------- -------------- -------
L-1
<PAGE>
<PAGE>
Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 1, 1996 (the
"Agreement"), between Merrill Lynch Mortgage Capital Inc. (the "Seller") and
Merrill Lynch Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase certain
multifamily and commercial mortgage loans (the "Mortgage Loans") as provided
herein. The Purchaser intends to deposit them, together with the First Union
Loans (as defined below), into a trust fund (the "Trust Fund"), the beneficial
ownership of which will be evidenced by multiple classes (each, a "Class") of
mortgage pass-through certificates (the "Certificates"). One or more "real
estate mortgage investment conduit" ("REMIC") elections will be made with
respect to the Trust Fund. The Trust Fund will be created and the Certificates
will be issued pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of April 1, 1996 (the "Cut-off Date"), among the
Purchaser as depositor, GE Capital Asset Management Corporation as master
servicer (in such capacity, the "Master Servicer"), GE Capital Realty Group,
Inc. as special servicer (in such capacity, the "Special Servicer") and Bankers
Trust Company of California, N.A. as trustee (the "Trustee"). Concurrently with
the purchase of Mortgage Loans pursuant to this Agreement, the Purchaser will
also purchase multifamily and commercial mortgage loans pursuant to a Mortgage
Loan Purchase Agreement, dated as of April 1, 1996, between First Union National
Bank of North Carolina ("First Union") and the Purchaser (the "First Union
Agreement"). Such mortgage loans (the "First Union Mortgage Loans") will
likewise be deposited into the Trust Fund. Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans accepted by the Purchaser pursuant to the terms hereof.
(The Loans identified on the Mortgage Loan Schedule shall hereinafter be
referred to as the "MLMC Mortgage Loans.") The MLMC Mortgage Loans will have an
aggregate principal balance of $347,522,166 (the "MLMC Balance") as of the close
of business on the Cut-off Date, after giving effect to any payments due
<PAGE>
<PAGE>
before such date whether or not received. The MLMC Balance and the First Union
Balance (as defined in the First Union Agreement) together equal an aggregate
principal balance (the "Initial Pool Balance") of $647,219,459. The purchase and
sale of the MLMC Mortgage Loans shall take place on April 1, 1996 or such other
date as shall be mutually acceptable to the parties hereto (the "Closing Date").
The consideration for the MLMC Mortgage Loans shall consist of (A) a cash amount
equal to 97.890625% of the aggregate principal of the MLMC Mortgage Loans, plus
(B) interest accrued on each MLMC Mortgage Loan at the related Net Mortgage
Rate, for the period from and including the Cut-off Date up to but not
including the Closing Date, which cash amount shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title and
interest in and to the MLMC Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the MLMC
Mortgage Loans identified on the Mortgage Loan Schedule as of such date. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the MLMC Mortgage Loans due
on or before the Cut-off Date). All scheduled payments of principal and interest
due on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the MLMC Mortgage Loans due on or
before the Cut-off Date), shall belong to, and be promptly remitted to, the
Seller.
(c) The Seller hereby represents and warrants that it has, on behalf of
the Purchaser, delivered to the Trustee, the documents and instruments specified
below with respect to each MLMC Mortgage Loan (each a "Mortgage File"). All
Mortgage Files so delivered will be held by the Trustee in escrow at all times
prior to the Closing Date. Each Mortgage File shall, except as otherwise
disclosed on Exhibit B hereto, contain the following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty,
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<PAGE>
<PAGE>
express or implied) to the order of Bankers Trust Company of
California, N.A., as trustee for the registered holders of
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-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 (with
recording information indicated thereon), if such item is a
document separate from the Mortgage;
(iv) an original executed assignment of the Mortgage, any related
Assignment of Leases (if such item is a document separate from
the Mortgage), and any other recorded document relating to the
Mortgage Loan otherwise included in the Mortgage File, in favor
of Bankers Trust Company of California, N.A., as trustee for the
registered holders of Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1996-C1;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of Bankers Trust Company of
California, N.A., as trustee for the registered holders of
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-C1, in recordable form;
(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 on the date of 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) 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 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 Seller on record with the
-3-
<PAGE>
<PAGE>
applicable public office for UCC Financing Statements, an
original UCC-2 or UCC-3, as appropriate, in favor of Bankers
Trust Company of California, N.A., as trustee for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1.
(d) Within 30 days following the Closing Date, the Purchaser shall
submit or cause to be submitted for recordation or filing, as the case may be,
in the appropriate public office for real property records or Uniform Commercial
Code financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clauses (iv) and (v) of
subsection (c) above and each UCC-2 and UCC-3 in favor of and delivered to the
Trustee constituting part of the Mortgage File. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the
Purchaser or its designee.
(e) All documents necessary to the servicing of the MLMC Mortgage Loans
and in the Seller's possession (the "Additional Mortgage Loan Documents") that
are not required to be delivered to the Trustee shall be delivered or caused to
be delivered by the Seller to the Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a banking corporation validly existing and in
good standing under the laws of the State of North Carolina and is duly
authorized and qualified to transact any and all business contemplated
by this Agreement and possesses all requisite authority, power,
licenses, permits and franchises to carry on its business as currently
conducted by it and to execute, deliver and comply with its obligations
under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is
-4-
<PAGE>
<PAGE>
considered in a proceeding in equity or at law), or by public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or By-Laws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or which
may be applicable to the Seller or any of its assets.
(iv) The Seller 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 other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Seller or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement or that requires
the consent of any third person to the execution of this Agreement or
the performance by the Seller of its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or adversely affect the performance by the Seller of its
obligations under this Agreement.
-5-
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<PAGE>
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the MLMC Mortgage Loans of the Seller to the Purchaser as a sale of
the MLMC Mortgage Loans to the Purchaser in exchange for consideration
consisting of an amount equal to the Seller's pro rata portion of the
proceeds of the sale of the Certificates by the Purchaser to the
Underwriters (the Seller's pro rata portion to be determined according
to the percentage that the MLMC Balance represents of the Initial Pool
Balance) pursuant to the Underwriting Agreement, dated as of March 29,
1996 (the "Underwriting Agreement") and the Certificate Purchase
Agreement, dated as of March 29, 1996 (the "Certificate Purchase
Agreement"). The consideration received by the Seller upon the sale of
the MLMC Mortgage Loans to the Purchaser will constitute reasonably
equivalent value and fair consideration for the MLMC Mortgage Loans. The
Seller will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the MLMC Mortgage Loans to the
Purchaser. The Seller is not selling the MLMC Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the
creditors of the Seller.
(ix) Immediately prior to the sale of the MLMC Mortgage Loans to
the Purchaser as herein contemplated, the Seller will have good title
thereto and be the sole owner thereof, and such sale will transfer the
MLMC Mortgage Loans to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest.
(b) The Seller hereby represents and warrants for the benefit of the
Purchaser and the Trustee for the benefit of the Certificateholders as of the
Closing Date, with respect to each MLMC Mortgage Loan, that:
(i) The Seller has good and marketable title to, and is the sole
owner and holder of, the Mortgage Loan.
(ii) The Seller has full right and authority to sell, assign and
transfer the Mortgage Loan.
(iii) The information pertaining to the Mortgage Loan set forth
in the Mortgage Loan Schedule is true, correct and complete in all
material respects as of the Cut-off Date.
(iv) The Mortgagor, lessee and/or operator was in possession of
all licenses, permits, and authorizations then required for use of the
Mortgaged Property which were valid and in full force and effect as of
the origination date.
(v) The origination, servicing and collection practices used by
the Seller or any prior holder of the Note
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have been in all respects legal, proper and prudent and have met
customary industry standards.
(vi) The Seller is transferring the Mortgage Loan to the
Purchaser free and clear of any liens, pledges, charges and security
interests.
(vii) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(viii) The Mortgage Loan complied with all applicable usury,
truth-in-lending, real estate settlement, equal credit opportunity and
disclosure laws as of the origination date.
(ix) Each of the related Mortgage Note, related Mortgage and
other agreements executed in connection therewith is the legal, valid
and binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in the
applicable state in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and
there is no valid defense, counterclaim or right of offset or rescission
available to the related Mortgagor with respect to such Mortgage Note,
Mortgage or other agreements.
(x) The Mortgage File contains an Assignment of Leases, which
creates, in favor of the holder of the Note, a valid perfected and
enforceable lien of the same priority as the related Mortgage, in the
property and rights described therein; provided that the enforceability
of such lien is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the enforcement of
creditors' rights generally, and by the application of the rules of
equity.
(xi) Since the origination of the Mortgage Loan the terms of the
related Mortgage Note, Mortgage and Security Agreements have not been
impaired, waived, modified, altered, satisfied, canceled or subordinated
by the Seller, the originator or the servicer thereof in any respect,
except, in each of the foregoing instances, by written instruments that
are a part of the related Mortgage File, recorded in the applicable
public recording office if necessary to maintain the priority of the
lien of the related Mortgage and Security Agreements, delivered to the
Purchaser.
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(xii) The Mortgage Loan complies with the Seller's underwriting
policies in effect as of such Mortgage Loan's origination date (as
applicable) and is on a form commonly used by the Seller.
(xiii) The related Mortgage Note is not secured by any
collateral that is not in the Trust Fund and each Mortgage Loan that is
cross-collateralized is cross-collateralized only with other mortgage
loans sold pursuant to this Agreement.
(xiv) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid, binding and enforceable assignment of such
Mortgage in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xv) The Mortgage Loan is not a participation interest in a
mortgage loan, but is a whole loan, and the Seller does not own and is
not entitled to own any equity interest in the Mortgagor.
(xvi) The Mortgage Loan does not contain any terms providing for
a contingent interest, or negative amortization.
(xvii) The related Mortgage is a valid and enforceable
first-mortgage lien on the related Mortgaged Property. Such lien has
priority over all other liens and encumbrances (including mechanic's or
materialmen's liens) except for (A) the lien for current real estate
taxes and assessments not yet due and payable and (B) covenants,
conditions and restrictions, rights of way, easements and other matters
that are of public record and are referred to in the related lender's
title insurance policy, none of which materially interferes with the
security intended to be provided by such Mortgage.
(xviii) The related Mortgage Note and Mortgage do not require
the Mortgagee thereof to release any portion of the related Mortgaged
Property that would have a material and adverse affect on the related
Mortgage Loan from the lien of the Mortgage except upon payment in full
of the Mortgage Loan.
(xix) Prior to the Cut-off Date, there are no delinquent taxes,
assessments or other governmental charges which would be a lien against
the related Mortgage Property affecting the related Mortgaged Property
or an escrow of
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funds in an amount sufficient to cover such payments has been
established.
(xx) All escrows, reserves, deposits and other payments relating
to the Mortgage Loan are under the control of the Seller or Servicer of
such Mortgage Loan and all amounts required under the Mortgage Loan
Documents to be deposited by the related Mortgagor have been deposited.
All such escrows, reserves, deposits and other payments have been
conveyed by the Seller to the Trustee.
(xxi) (A) Except for certain delinquent payment, none of which
was more than thirty (30) days past the date when first due, there was
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the best
knowledge of Seller, no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration occurred
during the preceding twelve months; and (B) the Seller has not waived
any material default, breach, violation or event of acceleration of any
of the foregoing, and, pursuant to the terms of the related Mortgage or
the related Mortgage Notice, no person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
(xxii) As of the date of origination, the Mortgage Loan has a
Debt Service Coverage Ratio of at least 1.15 and a Loan-to-Value Ratio
of not more than 85.00%, as calculated as described in the Prospectus
Supplement.
(xxiii) There is no proceeding known to the Seller to be pending
or threatened in writing for the total or partial condemnation of a
material part of the related Mortgaged Property, and the Mortgaged
Property is free and clear of any damage that would materially and
adversely affect its value as security for the Mortgage Loan.
(xxiv) Each improvement located on or forming part of the
related Mortgaged Property complies with applicable laws and zoning
ordinances, or constitutes a legal non-conforming use or structure or,
if such an improvement does not so comply, such non-compliance does not
materially and adversely affect the value or operation of the Mortgaged
Property.
(xxv) None of the improvements included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of the origination of the Mortgage Loan lies outside of the
boundaries and building restriction lines of the related Mortgaged
Property, except
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for certain immaterial encroachments therefrom, and no improvements on
adjoining properties materially encroach upon the related Mortgaged
Property.
(xxvi) The related Mortgaged Property is covered by an ALTA
lender's title insurance policy or its equivalent, insuring for the
benefit of the original holder of the related Note, its successors and
assigns that the related Mortgage is a valid first mortgage lien on such
Mortgaged Property in the original principal amount of the related Note,
subject only to the exceptions stated therein, which do not and will not
materially and adversely interfere with (1) the ability of the related
Mortgagor timely to pay in full the principal and interest on the
related Mortgage Note, or (2) the use of such Mortgaged Property for the
use currently being made thereof, or (3) the value of the Mortgaged
Property, and such policy is freely assignable to the trustee without
the consent of or any notification to the insurer; and such title
insurance policy is in full force and effect, and no claims have been
made thereunder.
(xxvii) The related Mortgaged Property is insured by a fire and
extended perils insurance policy that provides coverage in an amount not
less than the full replacement value thereof.
(xxviii) The related Mortgaged Property is insured by business
interruption or rent insurance, in an amount at least equal to 12 months
of operations of such Mortgaged Property and comprehensive general
liability insurance in an amount not less than $1 million per
occurrence.
(xxix) The related Mortgaged Property is not located in a "flood
hazard area" as defined by the Federal Insurance Administration or is
covered by flood hazard insurance.
(xxx) The Mortgage Loan represents a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code. The Seller represents and
warrants that, either as of the date of origination or the Closing Date,
the fair market value of the property securing the Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan.
(xxxi) Prepayment Premiums and Yield Maintenance Charges payable
with respect to the Mortgage Loan, if any, constitute "customary
prepayment penalties" within the meaning of Treasury regulation Section
1.860G-1(b)(2).
(xxxii) A Phase I Environmental Assessment was performed by or
on behalf of the Seller with respect to the
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related Mortgaged Property. Such Phase I Environmental Assessment was
performed within six (6) months (or 18 months with respect to three (3)
of the Mortgaged Properties) prior to their respective dates of
origination. A report of such Phase I Environmental Site Assessment has
been delivered to the Purchaser, and the Seller, having made no
independent inquiry other than reviewing such report, has no knowledge
of any material and adverse environmental condition or circumstance
affecting the related Mortgaged Property that was not disclosed in such
report. To the extent any such condition or circumstance was disclosed,
there has been escrowed a sufficient amount of money to cure and remedy
such condition or circumstance as recommended in the Phase I or Phase II
Environmental Site Assessment.
(xxxiii) The Mortgage Loan contains a representation made by the
Mortgagor in substance that it has not and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in
any manner that violates federal, state or local laws, ordinances,
regulations or orders. The Mortgage Loan requires that the Mortgagor
will defend and hold the holder of the Mortgage and its successors
and/or 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 any representation, warranty or covenant relating to
environmental matters given by the Mortgagor under the related Mortgage
except for those resulting from gross negligence or willful misconduct
by the holder of the Mortgage. To the best of the Seller's knowledge,
the Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to environmental hazards, and
no notice of violation of such laws have been issued by any governmental
agency or authority, except as disclosed in environmental or engineering
assessments, including Phase I Environmental Site Assessments or
additional assessments (including Phase II Environmental Site
Assessments).
(xxxiv) To the best of the knowledge of the Seller, the
Mortgagor is not a debtor in any state or federal bankruptcy or
insolvency proceeding.
(xxxv) No advance of funds has been made directly or indirectly,
by the Seller to the Mortgagor other than pursuant to the Note and no
funds have been received from any person other than such Mortgagor for
or on account of payments due on the Note.
(xxxvi) The related Mortgage prohibits any sale or transfer of,
or further pledge or lien on the related Mortgaged Property, whether
equal or subordinate to the lien
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of the related Mortgage, other than certain non-foreclosable liens fully
subordinated to the lien of the Mortgage, without the prior written
consent of the holder of such Mortgage. The related Mortgaged Property
is not subject to any material subordinate debt known to Seller which is
not otherwise subject to a standstill agreement.
(xxxvii) If the related Mortgaged Property is a retail or
multifamily property, based on Mortgagor's representations, tenant
estoppel certificates and other documents obtained by the Seller, (i)
the information contained in the related schedule of leases or most
recent rent roll, as the case may be, is true and correct in all
material respects, (ii) all leases set forth therein are in full force
and effect, and (iii) no material default by the Mortgagor or the
lessees has occurred under such leases, nor, to the best of the Seller's
knowledge, is there any existing condition which, but for the passage of
time or the giving of notice, or both, would result in a material
default under the terms of such lease.
(xxxviii) Any related assignment of leases creates a valid
first-priority assignment of or security interest in the right to
receive all payments due under the related leases, and no other person
owns any interest therein superior to or of equal priority with the
interest created under such assignment.
(xxxix) If the principal balance of the related Mortgage Loan is
greater than $2.5 million, the related Mortgagor is a person, other than
an individual, which is formed or organized solely for the purpose of
owning and operating the Mortgaged Property, does not engage in any
business unrelated to such property and its financing, does not have any
assets other than those related to its interest in the property or its
financing, or any indebtedness other than as permitted by the related
Mortgage and the other Mortgage Loan documents, has its own books and
records and accounts separate and apart from any other person, and holds
itself out as being a legal entity, separate and apart from any other
person.
(xl) With respect to any Mortgage Loan that is secured in whole
or in part by the interest of a Mortgagor as a lessee under a Ground
Lease but not by the related Fee Interest:
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
(B) The Mortgagor's interest in such Ground Lease is assignable
to the Trustee without the consent of
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the lessor thereunder (or, if any such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Trustee and its successors
without a need to obtain the consent of such lessor;
(C) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Ground Lessee and
that any such action without such consent is not binding on the Ground
Lessee, its successors or assigns.
(D) Unless otherwise disclosed to the Purchaser, the Ground
Lease does not permit any increase in the amount of rent payable by the
Ground Lessee thereunder during the term of the Mortgage Loan.
(E) To the best of the Seller's knowledge, at the Closing Date,
such Ground Lease is in full force and effect and no default has
occurred under such Ground Lease;
(F) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee; and such Ground
Lease, or an estoppel or consent letter received by the mortgagee from
the lessor, further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner described in such Ground
Lease or estoppel or consent letter;
(G) Except as indicated in the related title insurance policy or
opinion of title, the ground lessee's interest in the Ground Lease is
not subject to any liens or encumbrances superior to, or of equal
priority with, the related mortgage, other than the related ground
lessor's related fee interest.
(H) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease before the lessor thereunder may terminate such
Ground Lease; and
(I) Such Ground Lease has an original term (including any
extension options set forth therein) that extends not less than 10 years
beyond the Maturity Date of the related Mortgage Loan.
(J) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds other than in
respect to 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 lessee's mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
the repair
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or restoration progresses, or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon; and
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence of
an uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee; or in any manner, which would
adversely affect the security provided by the related Mortgage.
(c) If the Seller receives notice of a Document Defect or a Breach (the
"Defect/Breach Notice"), then the Seller shall within 90 days after its receipt
of the Defect/Breach Notice (i) 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 (ii) repurchase the
affected MLMC Mortgage Loan (or the related mortgaged property) from the Trustee
at a price equal to the Purchase Price; provided, however, that if such Document
Defect or Breach is capable of being cured but not within such 90-day period and
the Seller has commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, the Seller shall have an
additional 90 days to complete such cure; and provided, further, that with
respect to such additional 90-day period the Seller shall have delivered an
Officer's Certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such breach will be cured within the
additional 90-day period. 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.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Purchaser has the
full corporate power and authority and legal right to acquire the MLMC Mortgage
Loans from
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the Seller and to transfer the MLMC Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and will be obtained on a timely basis), no consent, approval, authorization or
order of, registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction described in
this Agreement.
(d) None of the acquisition of the MLMC Mortgage Loans by the Purchaser,
the transfer of the MLMC Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement and by the Purchaser, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of the Purchaser's
Articles of Incorporation or Bylaws, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Purchaser is a party
or by which the Purchaser is bound, or (C) any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over the Purchaser or its assets.
(e) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Purchaser will report the transfer of the MLMC
Mortgage Loans by the Seller to the Purchaser as a sale of the MLMC Mortgage
Loans to the Purchaser in exchange for consideration consisting of an amount
equal to the Seller's pro rata portion of the proceeds of the sale of the
Certificates by the Purchaser to the Underwriters (the Seller's pro rata portion
to be determined according to the percentage that the MLMC Balance represents of
the Initial Pool Balance) pursuant to the Underwriting Agreement and the
Certificate Purchase Agreement.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Willkie Farr & Gallagher, One
Citicorp Center, 153 East 53rd
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Street, New York, New York 10022 at 10:00 A.M., New York time, on the Closing
Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth in
Sections 3(a), 3(b) and 3(c) of this Agreement and all of the representations
and warranties of the Purchaser set forth in Section 4 of this Agreement shall
be true and correct in all material respects as of the Closing Date;
(b) All documents specified in Section 6 of this Agreement (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the Purchaser,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian and
the Master Servicer, respectively, all documents represented to have been or
required to be delivered to the Trustee and the Master Servicer pursuant to
Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with and
the Seller shall have the ability to comply with all terms and conditions and
perform all duties and obligations required to be complied with or performed
after the Closing Date; and
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
MLMC Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the Purchaser and the
Underwriters may rely, to the effect that: (1) the representations and
warranties of the Seller 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 such
date; and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the
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conditions on its part that are required under this Agreement to be performed or
satisfied at or prior to the date hereof;
(c) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, dated the Closing Date, and upon which the Purchaser
may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, dated the Closing Date, and upon which the Purchaser
and the Underwriters may rely, to the effect that (i) such officer has carefully
examined the Prospectus (as defined in the Underwriting Agreement) and nothing
has come to his attention that would lead him to believe that the Prospectus, as
of the date of the Prospectus Supplement (as defined in the Underwriting
Agreement) or as of the Closing Date, included or includes any untrue statement
of a material fact or omitted or omits to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (ii) such officer has examined
the Memorandum (as defined in the Certificate Purchase Agreement) and nothing
has come to his attention that would lead him to believe that the Memorandum, as
of the date thereof or as of the Closing Date, included or includes any untrue
statement of a material fact or omitted or omits to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The resolutions of the board of directors of the Seller and any
requisite shareholder consent authorizing the Seller's entering into the
transactions contemplated by this Agreement, the certificate of incorporation
and by-laws of the Seller, and a certificate of good standing of the Seller
issued by the Secretary of State of the State of Delaware not earlier than sixty
(60) days prior to the Closing Date;
(f) A written opinion of Thacher Proffitt & Wood, counsel for the
Seller, in form and substance acceptable to the Purchaser and its counsel, with
any modifications required by the rating agencies identified in the Prospectus
Supplement (the "Rating Agencies"), dated the Closing Date and addressed to the
Purchaser, the Underwriters and each of the Rating Agencies, together with such
other written opinions as may be required by the Rating Agencies; and
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(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 7. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or the Underwriters within the meaning of either
Section 15 of the Securities Act of 1933 (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934 (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 in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, in any amendment
thereof or supplement thereto, the Private Placement Memorandum, Computation
Materials or ABS Term Sheets distributed by either Underwriter, or arise out of
or are based upon any 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 in which they were made, not misleading, which
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon any information furnished to the Purchaser by the Seller
or approved by the Seller, or upon any document delivered to the Purchaser by
the Seller, or upon any of the representations, warranties, covenants or
agreements of the Seller as set forth in this Agreement (collectively, the
"Seller's Information"), it being acknowledged that the statements set forth in
the Prospectus Supplement under the caption "Description of the Mortgage Pool"
or elsewhere in the Prospectus Supplement with respect to the subjects discussed
under such caption and statements in the Private Placement Memorandum, the
Computational Materials and ABS Term Sheet, to the extent relating to or based
(in whole or in part) on information relating to the MLMC Mortgage Loans or the
Seller, are to be the only statements made in reliance upon information
furnished or approved by the Seller, or upon documents delivered to the
Purchaser by the Seller, or upon any of the representations, warranties,
covenants or agreements of the Seller as set forth in this Agreement. The Seller
further agrees to indemnify and hold harmless the Purchaser, the Underwriters,
their respective officers and directors, and each person, if any, who controls
the Purchaser or the Underwriters within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity with reference to the inclusion of information substantially identical
to that included in the Prospectus Supplement with respect to the Seller's
Information in the Memorandum or any amendment thereof or supplement thereto.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
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(b) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (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 it from any liability that
it may have to any indemnified party 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 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 that 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 for
any legal or other expenses subsequently incurred by such 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, approved by the Purchaser, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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 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 only be in respect of the counsel referred to in such
clause (i) or (iii).
(c) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under Section 7(a) hereof or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified
-19-
<PAGE>
<PAGE>
party as a result of such losses, claims, damages or liabilities, in such
proportion as is appropriate to reflect the relative fault of the indemnified
and indemnifying parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnified and
indemnifying parties 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 such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. 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 guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
7 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Purchaser, the
Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(f) The Underwriters shall be third-party beneficiaries of the
provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser
to the extent that the Purchaser has paid) the Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the MLMC Balance represents the
Initial Pool Balance): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final
-20-
<PAGE>
<PAGE>
Prospectus and Memorandum relating to the Certificates; (ii) the initial fees,
costs, and expenses of the Trustee (including reasonable attorneys' fees); (iii)
the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates so registered; (iv) the fees charged by the
Rating Agencies to rate the Certificates so rated; (v) the expense of recording
any assignment of Mortgage or assignment of Assignment of Leases as contemplated
by Section 2 hereof; and (vi) the cost of obtaining a "comfort letter" from a
firm of certified public accountants selected by the Purchaser with respect to
numerical information in respect of the MLMC Mortgage Loans and the Seller
included in the Prospectus and Memorandum. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of the
parties hereto that the conveyance of the MLMC Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the MLMC Mortgage Loans by the Seller to the Purchaser and not as a pledge of
the MLMC Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the MLMC Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the MLMC Mortgage Loans by the Seller to the Purchaser to secure a
debt or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code; (ii) the conveyance provided for in Section 2
hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
MLMC Mortgage Loans, and all amounts payable to the holder of the MLMC Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account (each as defined in the
Pooling and Servicing Agreement) whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
Custodian, of the Mortgage 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
(v) notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
-21-
<PAGE>
<PAGE>
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the secured
party for the purpose of perfecting such security interest under applicable law.
The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the MLMC Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the MLMC Mortgage Loans by
the Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an
-22-
<PAGE>
<PAGE>
original, but which together shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser, and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 7.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
-23-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
SELLER
MERRILL LYNCH MORTGAGE CAPITAL INC.
By: /s/ Robert J. Fitzpatrick
--------------------------------
Name: Robert J. Fitzpatrick
Title: Vice President
Address for Notices:
World Financial Center
New York, New York 10281
Attention:
Telecopier No.: (212) 449-0735
Telephone No.: (212) 449-2640
PURCHASER
MERRILL LYNCH MORTGAGE
INVESTORS, INC.
By: /s/ Bruce Ackerman
--------------------------------
Name: Bruce L. Ackerman
Title: Vice President
Address for Notices:
World Financial Center
New York, New York 10281
Attention:
Telecopier No.: (212) 449-7684
Telephone No.: (212) 449-5849
-24-
<PAGE>
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
-25-
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Merrill Lynch Only
MLMI 1996 - C1
MORTGAGE LOAN SCHEDULE
- ------------------------------------------------------------------------------------------------------------------------------------
Control # Property Name Address City State Zipcode
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Mountaingate Plaza First St & Los Angeles Ave Simi Valley CA 93065
2 Renaissance Center West 4001 South Decatur Blvd. Las Vegas NV 89103
4 Tropicana Palms 6420 East Tropicana Avenue Las Vegas NV 89122
6 Holiday Manor Shopping Center 4820 US Highway 42 Northfield KY 40222
7 Mission Park Apartments 221 Woodland Parkway San Marcos CA 92069
8 Canyon Country Plaza 19120 Soledad Canyon Road Santa Clarita CA 91355
9 Verde Mont Villas 6155 Palm Avenue San Bernardino CA 92407
10 Brigantine Town Center 4200 Harbor Beach Boulevard Brigantine NJ 08203
11 Pace's Crossing Apartments 2411 I-35E South Denton TX 76205
12 The Corner at Seven Corners 6270 - 6290 Arlington Boulevard Falls Church VA 22044
13 New Colony Apartments 1805-1917 S. Shields Street Fort Collins CO 80526
14 Southglen Center 12035-12055 Metcalf Ave. Overland Park KS 66126
15 Northgate Shopping Center 7100 West State Street Boise ID 83703
16 ANA ParkTowne Apartments 290 Wilson Avenue Perris CA 92571
17 Sunvilla Estates 91 Cabernet Parkway Reno NV 89512
18 Pecan Square Apartments 3535 Webb Chapel Extension Dallas TX 75220
19 Santee Town Center Town Center Parkway Santee CA 92071
20 Briarhill Apartments 140 West Hill Avenue Fullerton CA 92632
22 Emorywoods Apartments 2085 Powell Lane DeKalb County GA 30033
21 Canyon View Apartments 7400 Pirates Cove Road Las Vegas NV 89128
26 Rainbow Professional Center 2655-2685 S. Rainbow Blvd. Las Vegas NV 89102
23 Cedar Crest Square Shopping Center Quentin Road Lebanon PA 17042
25 Ocotillo Plaza 2415-2501 E. Tropicana Las Vegas NV 89121
27 Coral Gables Apartments 10522 Beechnut Houston TX 77072
30 Heritage Place Shopping Center 63 Church Street Flemington NJ 08822
29 Trailer Rancho Mobile Home Park 3499 East Bayshore Rd. Redwood City CA 94063
28 Sorrento Pines 4104-4122 Sorrento Valley Blvd. San Diego CA 92121
32 El Encanto Villas 1151 Walnut Avenue Tustin CA 92680
35 Comfort Inn - Buckhead 2115 Piedmont Road, NE Atlanta GA 30324
33 Coral Island Apartments 4700 South Kirkwood Houston TX 77072
37 Post Falls Factory Outlet Center 4037 Riverbend Avenue Post Falls ID 83854
38 Charleston Square (Phase I) 4420-4480 E. Charleston Blvd Las Vegas NV 89104
39 Chateau Montagne Apartments 2628 I-85 Access+M3 Road DeKalb County GA 30345
40 Suntree Apartments 3040 Suntree Plaza Kansas City KS 66103
41 City Centre Office Building 200 Pine Avenue Long Beach CA 90802
42 Peppertree Business Park 10656-10792 Roselle Street San Diego CA 92121
43 Medical Arts Shopping Center 4700 - 4845 Walters Avenue Savannah GA 31405
45 Warwick Apartments 3330 Webb Chapel Extension Dallas TX 75220
46 ANA Vermont Breeze Apts 12901 S. Vermont Avenue Gardena CA 90247
47 ANA Towngate 23227 Hemlock Avenue Moreno Valley CA 92571
48 ANA Country Hills Apts. 66900 Ironwood Drive Desert Hot Sprin CA 92240
49 Bally's Scandinavian Health Spa 4733 Hills & Dales Road NW Canton OH 44708
52 Villa Del Sol 3225 Long Beach Blvd. Long Beach CA 90807
53 The Fountains of San Antonio 8630 Fairhaven San Antonio TX 78229
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
- -------------------------------------------------------------------------------------------------------------------------------
1 24,074,864.17 186,806.67 8.050 119 299 3/1/06 No 0
2 16,821,585.42 130,467.64 8.020 129 297 1/1/07 No 0
4 15,000,000.00 108,604.28 7.860 60 360 4/1/01 No 50 per pad
6 10,800,000.00 86,964.53 8.500 120 300 4/1/06 No 0
7 10,178,306.68 73,144.55 7.760 117 357 1/1/06 No 200 per unit
8 9,993,584.14 74,915.86 8.220 179 359 3/1/11 No 0
9 9,805,466.13 68,864.71 7.530 58 358 2/1/01 No 200 per unit
10 8,500,000.00 68,558.90 8.520 84 300 4/1/03 No 0
11 8,480,000.00 64,304.54 8.350 120 360 4/1/06 No 293 per unit
12 8,079,917.82 61,937.89 8.440 116 356 12/1/05 No 0
13 7,989,030.59 58,200.02 7.910 118 358 2/1/06 No 250 per unit
14 7,594,668.36 54,604.97 7.780 119 359 3/1/06 No 0
15 7,270,628.93 56,144.82 8.540 119 359 3/1/06 No 0
16 7,235,335.91 54,137.42 8.200 119 359 3/1/06 No 235 per unit
17 7,150,000.00 53,665.31 8.240 120 360 4/1/06 No 50 per pad
18 7,035,189.32 51,216.02 7.910 119 359 3/1/06 No 225 per unit
19 6,992,887.14 55,004.53 8.210 83 299 3/1/03 No 0
20 5,841,167.22 40,624.01 7.430 58 358 2/1/01 No 200 per unit
22 5,794,192.60 45,924.06 8.300 179 299 3/1/11 No 286 per unit
21 5,791,602.88 41,111.90 7.640 118 358 2/1/06 No 225 per unit
26 5,503,300.00 46,636.56 9.120 84 300 4/1/03 No 0
23 5,482,953.68 42,997.86 8.150 117 297 1/1/06 No 0
25 5,459,180.97 44,381.74 8.580 117 297 1/1/06 Partial 0
27 5,046,355.96 35,795.71 7.640 83 359 3/1/03 No 250 per unit
30 5,000,000.00 42,440.20 9.140 60 300 4/1/01 No 0
29 4,993,254.19 36,653.38 7.990 118 358 2/1/06 No 50 per pad
28 4,983,915.69 38,326.21 7.920 81 297 1/1/03 No 0
32 4,942,600.30 34,543.35 7.480 58 358 2/1/01 No 200 per unit
35 4,843,239.77 45,398.56 9.560 239 239 3/1/16 No 4 % of gross revenue
33 4,786,543.57 33,952.76 7.640 83 359 3/1/03 No 250 per unit
37 4,487,356.36 36,996.46 8.750 117 297 1/1/06 No 0
38 4,325,000.00 34,884.38 8.520 120 300 4/1/06 No 0
39 4,227,692.74 33,225.93 8.200 179 299 3/1/11 No 262.5 per unit
40 3,960,000.00 30,061.50 8.360 120 360 4/1/06 No 250 per unit
41 3,933,309.09 32,234.16 8.700 119 299 3/1/06 No 0
42 3,667,988.99 27,989.66 7.830 57 297 1/1/01 No 0
43 3,640,175.86 30,655.67 9.010 57 297 1/1/01 No .15 per sq. ft.
45 3,497,754.45 26,220.55 8.220 119 359 3/1/06 No 225 per unit
46 3,392,725.21 24,311.04 7.730 57 357 1/1/01 No 200 per unit
47 3,295,096.34 23,096.68 7.510 58 358 2/1/01 No 235 per unit
48 3,097,816.46 22,230.21 7.760 59 359 3/1/01 No 329 per unit
49 2,880,545.16 32,309.93 9.490 155 155 3/1/09 No 0
52 2,625,989.27 18,173.72 7.380 58 358 2/1/01 No 200 per unit
53 2,544,811.78 18,675.46 7.980 117 357 1/1/06 No 253 per unit
<CAPTION>
- ------------------------------------------------------------------
Control # Servicing Subserv Strip Subservicer
Fees Fee
- ------------------------------------------------------------------
1 0.0775 0.0550 CB
2 0.0775 0.0550 CB
4 0.0775 0.0550 CB
6 0.0775 0.0550 GE
7 0.0775 0.0550 CB
8 0.0775 0.0550 CB
9 0.0775 0.0550 CB
10 0.0775 0.0550 GE
11 0.0775 0.0550 GE
12 0.0775 0.0550 CB
13 0.0775 0.0550 GE
14 0.0775 0.0550 CB
15 0.0775 0.0550 GE
16 0.0775 0.0550 CB
17 0.0775 0.0550 CB
18 0.0775 0.0550 CB
19 0.0775 0.0550 CB
20 0.0775 0.0550 CB
22 0.0775 0.0550 CB
21 0.0775 0.0550 CB
26 0.0775 0.0550 GE
23 0.0775 0.0550 GE
25 0.0775 0.0550 GE
27 0.0775 0.0550 CB
30 0.0775 0.0550 GE
29 0.0775 0.0550 CB
28 0.0775 0.0550 CB
32 0.0775 0.0550 CB
35 0.0775 0.0550 GE
33 0.0775 0.0550 CB
37 0.0775 0.0550 CB
38 0.0775 0.0550 GE
39 0.0775 0.0550 CB
40 0.0775 0.0550 CB
41 0.0775 0.0550 CB
42 0.0775 0.0550 CB
43 0.0775 0.0550 CB
45 0.0775 0.0550 CB
46 0.0775 0.0550 CB
47 0.0775 0.0550 CB
48 0.0775 0.0550 CB
49 0.0775 0.0550 GE
52 0.0775 0.0550 CB
53 0.0775 0.0550 GE
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Merrill Lynch Only
- ------------------------------------------------------------------------------------------------------------------------------------
Control # Property Name Address City State Zipcode
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
69 Greenwood Plaza State Road 23 and Ironwood Drive South Bend IN 46614
55 Island Breeze Apartments 1321-1325 Rosecrans Avenue Gardena CA 90247
91 Vernitron Building 1601 Precision Park Lane San Diego CA 92173
56 Sepulveda/Victory Center 6411 Sepulveda Blvd. Van Nuys CA 91406
59 Tuxedo Park Apartments 16548 NE Halsey Portland OR 97230
64 Comfort Inn - West -Amarillo 2001 South Coulter Road Amarillo TX 79106
57 Fox Plaza Shopping Center 131, 201, 231 San Pedro, S.E. Albuquerque NM 87110
58 Northwest Crossing Apartments 9640 & 9680 Timber Line Road Dallas TX 75220
63 Canyon Park Apartments 2454 West Campbell Avenue Phoenix AZ 85015
61 Charlestowne South Apartments 2119 Lumpkin Road Augusta GA 30906
60 Adams Square Apartments 229 South Adams Road Spokane WA 99216
62 Clubview Gardens Apartments 3333 Webb Chapel Extension Dallas TX 75220
65 Woodhaven Apartments 1840 Killingsworth Road Augusta GA 30904
67 Factory Square 12 Water Street Mystic CT 06355
68 Elmwood Apartments 3593 Woodbrier Circle Tucker GA 30084
71 Arborwood Apartments 200 Muller Garden Tyler TX 75703
73 Comfort Inn - Airport - Little Rock 3200 Bankhead Little Rock AR 72206
72 Talla Villa Apartments 925 East Magnolia Drive Tallahassee FL 32301
76 Garden Breeze Apartments 415 South Mount Vernon Ave. San Bernadino CA 92410
74 Huntington Office Center 900 Walt Whitman Road Melville NY 11747
75 Highland Club Apartments Ponce de Leon Ave & Frederica St. Atlanta GA 30306
78 Donna/Ventura 19000-19030 Ventura Blvd. Tarzana CA 91356
80 Fox Valley Apartments 513 Valley Avenue Birmingham AL 35209
79 Morris Creek Apartments 982-B John Rolfe Drive Smithfield VA 23430
83 Comfort Inn - Oklahoma City 4017 N. W. 39th Expressway Oklahoma City OK 73112
81 North Hills Tropicana Apartments 15015 Parthenia Street North Hills CA 91343
85 Deer Park Apartments 87 Ruby Road Willington CT 06279
87 Fallbrook/Saticoy 7606 Fallbrook Ave. Canoga Park CA 91304
88 Summit Grove Apartments 2326-2340 Lawrenceville Highway DeKalb County GA 30033
90 Shoppers Landing 15 Main Street Freeport ME 04032
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
- -------------------------------------------------------------------------------------------------------------------------------
69 2,537,522.65 20,384.35 8.460 179 299 3/1/11 No 0
55 2,478,301.89 18,024.77 7.900 83 359 3/1/03 No 200 per unit
91 2,447,614.36 19,678.56 8.470 83 299 3/1/03 No 0
56 2,442,874.58 19,794.15 8.540 117 297 1/1/06 No 0
59 2,250,000.00 16,761.35 8.160 120 360 4/1/06 No 216 per unit
64 2,246,815.13 20,884.87 9.440 239 239 3/1/16 No 4% of gross revenue
57 2,242,831.85 17,336.07 7.980 117 297 1/1/06 No 0
58 2,238,562.85 16,781.15 8.220 119 359 3/1/06 No 225 per unit
63 2,200,000.00 16,589.77 8.290 120 360 4/1/06 No 200 per unit
61 2,197,073.67 16,234.94 8.060 178 358 2/1/11 No 250 per unit
60 2,196,989.50 16,020.30 7.920 118 358 2/1/06 No 275 per unit
62 2,158,523.99 15,714.01 7.910 119 359 3/1/06 No 225 per unit
65 1,997,941.04 15,608.96 8.130 119 299 3/1/06 No 250 per unit
67 1,900,568.90 14,500.35 8.210 57 333 1/1/01 No 350/unit & .34/sf
68 1,895,912.37 14,513.79 7.880 118 298 2/1/06 No 251 per unit
71 1,877,250.76 13,261.29 7.590 58 358 2/1/01 No 250 per unit
73 1,867,353.02 17,357.65 9.440 239 239 3/1/16 No 4% of gross revenue
72 1,840,538.01 15,497.18 8.020 237 237 1/1/16 No 250 per unit
76 1,798,734.69 12,920.31 7.770 59 359 3/1/01 No 378 per unit
74 1,794,950.87 14,810.82 8.760 117 297 1/1/06 No 0
75 1,793,799.12 14,955.26 7.910 238 238 2/1/16 No 250 per unit
78 1,755,207.64 14,697.61 8.940 117 297 1/1/06 No 0
80 1,598,387.44 12,625.90 8.260 119 299 3/1/06 No 300 per unit
79 1,591,967.11 13,552.82 8.170 237 237 1/1/16 No 250 per unit
83 1,497,876.75 13,923.25 9.440 239 239 3/1/16 No 4% of gross revenue
81 1,497,033.39 11,132.21 8.120 117 357 1/1/06 No 250 per unit
85 1,277,685.85 9,896.57 8.560 57 357 1/1/01 No 250 per unit
87 1,106,771.75 8,967.96 8.540 117 297 1/1/06 No 0
88 998,386.98 8,621.35 8.410 239 239 3/1/16 No 250 per unit
90 748,657.04 6,293.97 9.000 82 298 2/1/03 No 0
Totals/Wtg.
Averages: -------------- ------------ ----- --- ---
74 Loans 347,522,166.35 2,674,735.85 8.177 114 326
- ------------------------------------------------------------------
Control # Servicing Subserv Strip Subservicer
Fees Fee
- ------------------------------------------------------------------
69 0.0775 0.0550 CB
55 0.0775 0.0550 CB
91 0.0775 0.0550 CB
56 0.0775 0.0550 CB
59 0.0775 0.0550 CB
64 0.0775 0.0550 CB
57 0.0775 0.0550 GE
58 0.0775 0.0550 CB
63 0.0775 0.0550 GE
61 0.0775 0.0550 GE
60 0.0775 0.0550 GE
62 0.0775 0.0550 CB
65 0.0775 0.0550 GE
67 0.0775 0.0550 CB
68 0.0775 0.0550 CB
71 0.0775 0.0550 CB
73 0.0775 0.0550 CB
72 0.0775 0.0550 GE
76 0.0775 0.0550 CB
74 0.0775 0.0550 GE
75 0.0775 0.0550 GE
78 0.0775 0.0550 CB
80 0.0775 0.0550 GE
79 0.0775 0.0550 GE
83 0.0775 0.0550 CB
81 0.0775 0.0550 CB
85 0.0775 0.0550 CB
87 0.0775 0.0550 CB
88 0.0775 0.0550 CB
90 0.0775 0.0550 CB
</TABLE>
Note:
"Servicing Fees" includes Master Servicing Fee and Trustee Fee
<PAGE>
<PAGE>
Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 1, 1996 (the
"Agreement"), between First Union National Bank of North Carolina (the "Seller")
and Merrill Lynch Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase certain
multifamily and commercial mortgage loans (the "Mortgage Loans") as provided
herein. The Purchaser intends to deposit them, together with the MLMC Mortgage
Loans (as defined below), into a trust fund (the "Trust Fund"), the beneficial
ownership of which will be evidenced by multiple classes (each, a "Class") of
mortgage pass-through certificates (the "Certificates"). One or more "real
estate mortgage investment conduit" ("REMIC") elections will be made with
respect to the Trust Fund. The Trust Fund will be created and the Certificates
will be issued pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of April 1, 1996 (the "Cut-off Date"), among the
Purchaser as depositor, GE Capital Asset Management Corporation as master
servicer (in such capacity, the "Master Servicer"), GE Capital Realty Group,
Inc. as special servicer (in such capacity, the "Special Servicer") and Bankers
Trust Company of California, N.A. as trustee (the "Trustee"). Concurrently with
the purchase of Mortgage Loans pursuant to this Agreement, the Purchaser will
also purchase multifamily and commercial mortgage loans pursuant to a Mortgage
Loan Purchase Agreement, dated as of April 1, 1996 between Merrill Lynch
Mortgage Capital Inc. ("MLMC") and the Purchaser (the "MLMC Agreement"). Such
mortgage loans (the "MLMC Mortgage Loans") will likewise be deposited into the
Trust Fund. Capitalized terms used but not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A, excluding the Master Servicer Strip on Mortgage Loan No.
124, which has been retained by the entity from which the Seller acquired such
Mortgage Loans, shall not be part of REMIC I or REMIC II and shall be
distributed pursuant to Section 3.05(a)(xv) of the Pooling and Servicing
Agreement. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. (The
<PAGE>
<PAGE>
Loans identified on the Mortgage Loan Schedule shall hereinafter be referred to
as the "First Union Mortgage Loans.") The First Union Mortgage Loans will have
an aggregate principal balance of $299,697,293 (the "First Union Balance") as
of the close of business on the Cut-off Date, after giving effect to any
payments due before such date whether or not received. The First Union Balance
and the MLMC Balance (as defined in the MLMC Agreement) together equal an
aggregate principal balance (the "Initial Pool Balance") of $647,219,459. The
purchase and sale of the First Union Mortgage Loans shall take place on April 1,
1996 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The consideration for the First Union Mortgage Loans shall
consist of (A) a cash amount equal to 98.79% of the aggregate principal balance
of the First Union Mortgage Loans, plus (B) interest accrued on each First Union
Mortgage Loan at the related Net Mortgage Rate, for the period from and
including the Cut-off Date up to but not including the Closing Date, which cash
amount shall be paid to the Seller or its designee by wire transfer in
immediately available funds on the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title and
interest in and to the First Union Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the First
Union Mortgage Loans identified on the Mortgage Loan Schedule as of such date.
The Mortgage Loan Schedule, as it may be amended, shall conform to the
requirements set forth in this Agreement and the Pooling and Servicing
Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the First Union Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of principal
and interest due on or before the Cut-off Date but collected after the Cut-off
Date, and recoveries of principal and interest collected on or before the
Cut-off Date (only in respect of principal and interest on the First Union
Mortgage Loans due on or before the Cut-off Date), shall belong to, and be
promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has, on behalf of
the Purchaser, delivered to the Trustee, the documents and instruments specified
below with respect to each First Union Mortgage Loan (each a "Mortgage File").
All Mortgage
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<PAGE>
<PAGE>
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall, except as otherwise disclosed on
Exhibit B hereto, contain the following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty, express or implied) to the order of
Bankers Trust Company of California, N.A., as trustee for the
registered holders of Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1996-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 (with
recording information indicated thereon), if such item is a
document separate from the Mortgage;
(iv) an original executed assignment of the Mortgage, any related
Assignment of Leases (if such item is a document separate from
the Mortgage), and any other recorded document relating to the
Mortgage Loan otherwise included in the Mortgage File, in favor
of Bankers Trust Company of California, N.A., as trustee for the
registered holders of Merrill Lynch Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1996-C1, in
recordable form;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan in favor of Bankers Trust Company of
California, N.A., as trustee for the registered holders of
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-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 on the date of 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
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<PAGE>
<PAGE>
(viii) 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 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 Seller on record with the applicable public office
for UCC Financing Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of Bankers Trust Company of California,
N.A., as trustee for the registered holders of Merrill Lynch
Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1996-C1.
(d) Within 30 days following the Closing Date, the Purchaser shall
submit or cause to be submitted for recordation or filing, as the case may be,
in the appropriate public office for real property records or Uniform Commercial
Code financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clauses (iv) and (v) of
subsection (c) above and each UCC-2 and UCC-3 in favor of and delivered to the
Trustee constituting part of the Mortgage File. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the
Purchaser or its designee.
(e) All documents necessary to the servicing of the First Union Mortgage
Loans and in the Seller's possession (the "Additional Mortgage Loan Documents")
that are not required to be delivered to the Trustee shall be delivered or
caused to be delivered by the Seller to the Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association validly
existing under the laws of the United States of America and is duly
authorized and qualified to transact any and all business contemplated
by this Agreement and possesses all requisite authority, power,
licenses, permits and franchises to carry on its business as currently
conducted by it and to execute, deliver and comply with its obligations
under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and,
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<PAGE>
<PAGE>
assuming due authorization, execution and delivery hereof by the
Purchaser, constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights in general, as they may be applied in the context of
the insolvency of a National Banking Association, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), or by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities
under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's Articles of Association or
By-Laws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or which
may be applicable to the Seller or any of its assets.
(iv) The Seller 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 other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Seller or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement or that requires
the consent of any third person to the execution of this Agreement or
the performance by the Seller of its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of or compliance by the Seller with this
Agreement or
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<PAGE>
<PAGE>
the consummation of the transactions contemplated by this Agreement
and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or adversely affect the performance by the Seller of its
obligations under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the First Union Mortgage Loans of the Seller to the Purchaser as a
sale of the First Union Mortgage Loans to the Purchaser in exchange for
consideration consisting of an amount equal to the Seller's pro rata
portion of the proceeds of the sale of the Certificates by the Purchaser
to the Underwriters (the Seller's pro rata portion to be determined
according to the percentage that the First Union Balance represents of
the Initial Pool Balance) pursuant to the Underwriting Agreement, dated
as of March 29, 1996 (the "Underwriting Agreement") and the Certificate
Purchase Agreement, dated as of March 29, 1996 (the "Certificate
Purchase Agreement"). The consideration received by the Seller upon the
sale of the First Union Mortgage Loans to the Purchaser will constitute
reasonably equivalent value and fair consideration for the First Union
Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the First Union
Mortgage Loans to the Purchaser. The Seller is not selling the First
Union Mortgage Loans to the Purchaser with any intent to hinder, delay
or defraud any of the creditors of the Seller.
(ix) Immediately prior to the sale of the First Union Mortgage
Loans to the Purchaser as herein contemplated, the Seller will have good
title thereto and be the sole owner thereof, and such sale will transfer
the First Union Mortgage Loans to the Purchaser free and clear of any
pledge, lien, encumbrance or security interest.
(b) The Seller hereby represents and warrants for the benefit of the
Purchaser and the Trustee for the benefit of the Certficateholders as of the
Closing Date, with respect to each First Union Mortgage Loan, that:
(i) The Seller has good and marketable title to, and is the sole
owner and holder of, the Mortgage Loan.
(ii) The Seller has full right and authority to sell, assign and
transfer the Mortgage Loan.
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<PAGE>
<PAGE>
(iii) The information pertaining to the Mortgage Loan set forth
in the Mortgage Loan Schedule is true, correct and complete in all
material respects as of the Cut-off Date.
(iv) The Mortgagor, lessee and/or operator was in possession of
all licenses, permits, and authorizations then required for use of the
Mortgaged Property which were valid and in full force and effect as of
the origination date.
(v) The origination, servicing and collection practices used by
the Seller or any prior holder of the Note have been in all respects
legal, proper and prudent and have met customary industry standards.
(vi) The Seller is transferring the Mortgage Loan to the
Purchaser free and clear of any liens, pledges, charges and security
interests.
(vii) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(viii) The Mortgage Loan complied with all applicable usury and
disclosure laws as of the origination date.
(ix) Each of the related Mortgage Note, related Mortgage and
other agreements executed in connection therewith is the legal, valid
and binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in the
applicable state in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and
there is no valid defense, counterclaim or right of offset or rescission
available to the related Mortgagor with respect to such Mortgage Note,
Mortgage or other agreements.
(x) The Mortgage File contains an Assignment of Leases, which
creates, in favor of the holder of the Note, a valid perfected and
enforceable lien of the same priority as the related Mortgage, in the
property and rights described therein; provided that the enforceability
of such lien is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the enforcement of
creditors' rights generally, and by the application of the rules of
equity.
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<PAGE>
<PAGE>
(xi) Since the origination of the Mortgage Loan, the terms of
the related Mortgage Note, Mortgage and Security Agreements have not
been impaired, waived, modified, altered, satisfied, canceled or
subordinated by the Seller, the originator or the servicer thereof in
any respect, except, in each of the foregoing instances, by written
instruments that are a part of the related Mortgage File, recorded in
the applicable public recording office if necessary to maintain the
priority of the lien of the related Mortgage and Security Agreements,
delivered to the Purchaser.
(xii) The Mortgage Loan complies with the Seller's underwriting
policies in effect as of such Mortgage Loan's origination date (as
applicable), and is on a form commonly used by the Seller.
(xiii) The related Mortgage Note is not secured by any
collateral that is not in the Trust Fund and each Mortgage Loan that is
cross-collateralized is cross-collateralized only with other mortgage
loans sold pursuant to this Agreement.
(xiv) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid, binding and enforceable assignment of such
Mortgage in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xv) The Mortgage Loan is not a participation interest in a
mortgage loan, but is a whole loan, and the Seller does not own and is
not entitled to own any equity interest in the Mortgagor.
(xvi) The Mortgage Loan does not contain any terms providing for
a contingent interest, or negative amortization.
(xvii) The related Mortgage is a valid and enforceable first
mortgage lien on the related Mortgaged Property. Such lien has priority
over all other liens and encumbrances (including mechanics or
materialmen's liens) except for (A) the lien for current real estate
taxes and assessments not yet due and payable and (B) covenants,
conditions and restrictions, rights of way, easements and other matters
that are of public record and are referred to in the related lender's
title insurance policy, none of which materially interferes with the
security intended to be provided by such Mortgage.
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<PAGE>
(xviii) The related Mortgage Note and Mortgage do not require
the Mortgagee thereof to release any portion of the related Mortgaged
Property that would have a material and adverse affect on the related
Mortgage Loan from the lien of the Mortgage except upon payment in full
of the Mortgage Loan.
(xix) Prior to the Cut-off Date, there are no delinquent taxes,
assessments or other governmental charges which would be a lien against
the related Mortgage Property affecting the related Mortgaged Property
or an escrow of funds in an amount sufficient to cover such payments has
been established.
(xx) All escrows, reserves, deposits and other payments relating
to the Mortgage Loan are under the control of the Seller or Servicer of
such Mortgage Loan and all amounts required under the Mortgage Loan
Documents to be deposited by the related Mortgagor have been deposited.
All such escrows, reserves, deposits and other payments have been
conveyed by the Seller to the Trustee.
(xxi) (A) Except for certain delinquent payments, none of which
was more than thirty (30) days past the date when first due, there was
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the best
knowledge of Seller, no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration occurred
during the preceding twelve months; and (B) the Seller has not waived
any material default, breach, violation or event of acceleration of any
of the foregoing, and, pursuant to the terms of the related Mortgage or
the related Mortgage Note, no person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
(xxii) As of the date of origination, the Mortgage Loan has a
Debt Service Coverage Ratio of at least 1.15 and a Loan-to-Value Ratio
of not more than 85.00%, as calculated as described in the Prospectus
Supplement.
(xxiii) There is no proceeding known to the Seller to be pending
or threatened in writing for the total or partial condemnation of a
material part of the related Mortgaged Property, and the Mortgaged
Property is free and clear of any damage that would materially and
adversely affect its value as security for the Mortgage Loan.
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<PAGE>
<PAGE>
(xxiv) Each improvement located on or forming part of the
related Mortgaged Property complies with applicable zoning ordinances,
or constitutes a legal non-conforming use or structure or, if such an
improvement does not so comply, such non-compliance does not materially
and adversely affect the value or operation of the Mortgaged Property.
(xxv) None of the improvements included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of the origination of the Mortgage Loan lies outside of the
boundaries and building restriction lines of the related Mortgaged
Property, except for certain immaterial encroachments therefrom, and no
improvements on adjoining properties materially encroach upon the
related Mortgaged Property.
(xxvi) The related Mortgaged Property is covered by an ALTA
lender's title insurance policy or its equivalent, insuring for the
benefit of the original holder of the related Note, its successors and
assigns that the related Mortgage is a valid first mortgage lien on such
Mortgaged Property in the original principal amount of the related Note,
subject only to the exceptions stated therein, which do not and will not
materially and adversely interfere with (1) the ability of the related
Mortgagor timely to pay in full the principal and interest on the
related Mortgage Note, or (2) the use of such Mortgaged Property for the
use currently being made thereof, or (3) the value of the Mortgaged
Property, and such policy is freely assignable to the trustee without
the consent of or any notification to the insurer; and such title
insurance policy is in full force and effect, and no claims have been
made thereunder.
(xxvii) The related Mortgaged Property is insured by a fire and
extended perils insurance policy that provides coverage in an amount not
less than the principal balance of the Mortgage Loan.
(xxviii) The related Mortgaged Property is insured by business
interruption or rent insurance, in an amount at least equal to 12 months
of operations of such Mortgaged Property and comprehensive general
liability insurance in an amount not less than $1 million per
occurrence.
(xxix) The related Mortgaged Property is not located in a flood
hazard area as defined by the Federal Insurance Administration or is
covered by flood hazard insurance.
(xxx) The Mortgage Loan represents a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code. The Seller represents and
warrants that, either as of
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<PAGE>
the date of origination or the Closing Date, the fair market value of
the property securing the Mortgage Loan was not less than 80% of the
"adjusted issue price" (within the meaning of the REMIC Provisions) of
such Mortgage Loan.
(xxxi) Prepayment Premiums and Yield Maintenance Charges payable
with respect to the Mortgage Loan, if any, constitute "customary
prepayment penalties" within the meaning of Treasury regulation Section
1.860G-1(b)(2).
(xxxii) A Phase I Environmental Site Assessment was performed by
or on behalf of the Seller with respect to the related Mortgaged
Property. Such Phase I Environmental Site Assessment was performed
within six (6) months (or 18 months with respect to three (3) of the
Mortgaged Properties) prior to their respective dates of origination. A
report of such Phase I Environmental Site Assessment has been delivered
to the Purchaser, and the Seller, having made no independent inquiry
other than reviewing such report, has no knowledge of any material and
adverse environmental condition or circumstance affecting the related
Mortgaged Property that was not disclosed in such report. To the extent
any such condition or circumstance was disclosed, there has been
escrowed a sufficient amount of money to cure and remedy such condition
or circumstance as recommended in the Phase I or Phase II Environmental
Site Assessment.
(xxxiii) The Mortgage Loan contains a representation made by the
Mortgagor in substance that it has not and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in
any manner that violates federal, state or local laws, ordinances,
regulations or orders. The Mortgage Loan requires that the Mortgagor
will defend and hold the holder of the Mortgage and its successors
and/or 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 any representation, warranty or covenant relating to
environmental matters given by the Mortgagor under the related Mortgage
except for those resulting from gross negligence or willful misconduct
by the holder of the Mortgage. To the best of the Seller's knowledge,
the Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to environmental hazards, and
no notice of violation of such laws have been issued by any governmental
agency or authority, except as disclosed in environmental or engineering
assessments, including Phase I Environmental Site Assessments or
additional assessments (including Phase II Environmental Site
Assessments).
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<PAGE>
(xxxiv) To the best of the knowledge of the Seller, the
Mortgagor is not a debtor in any state or federal bankruptcy or
insolvency proceeding.
(xxxv) No advance of funds has been made directly or indirectly,
by the Seller to the Mortgagor other than pursuant to the Note and no
funds have been received from any person other than such Mortgagor for
or on account of payments due on the Note.
(xxxvi) The related Mortgage prohibits any sale or transfer of,
or further pledge or lien on the related Mortgaged Property, whether
equal or subordinate to the lien of the related Mortgage, other than
certain non-foreclosable liens fully subordinated to the lien of the
Mortgage, without the prior written consent of the holder of such
Mortgage. The related Mortgaged Property is not subject to any material
subordinate debt known to Seller which is not otherwise subject to a
standstill agreement.
(xxxvii) If the related Mortgaged Property is a retail or
multifamily property, based on Mortgagor's representations, tenant
estoppel certificates and other documents obtained by the Seller, (i)
the information contained in the related schedule of leases or most
recent rent roll, as the case may be, is true and correct in all
material respects, (ii) all leases set forth therein are in full force
and effect, and (iii) no material default by the Mortgagor or the
lessees has occurred under such leases, nor, to the best of the Seller's
knowledge, is there any existing condition which, but for the passage of
time or the giving of notice, or both, would result in a material
default under the terms of such lease.
(xxxviii) Any related assignment of leases creates a valid
first-priority assignment of or security interest in the right to
receive all payments due under the related leases, and no other person
owns any interest therein superior to or of equal priority with the
interest created under such assignment.
(xxxix) If the principal balance of the Mortgage Loan is greater
than $2.5 million, the related Mortgagor is a person, other than an
individual, which is formed or organized solely for the purpose of
owning and operating the Mortgaged Property, does not engage in any
business unrelated to such property and its financing, does not have any
assets other than those related to its interest in the property or its
financing, or any indebtedness other than as permitted by the related
Mortgage and the other Mortgage Loan documents, has its own books and
records and accounts separate and apart from any other person, and holds
itself out as being a legal entity, separate and apart from any other
person.
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<PAGE>
(xl) With respect to any Mortgage Loan that is secured in whole
or in part by the interest of a Mortgagor as a lessee under a Ground
Lease but not by the related Fee Interest:
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
(B) The Mortgagor's interest in such Ground Lease is assignable
to the Trustee without the consent of the lessor thereunder (or, if any
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further assignable by
the Trustee and its successors without a need to obtain the consent of
such lessor;
(C) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Ground Lessee and
that any such action without such consent is not binding on the Ground
Lessee, its successors or assigns.
(D) Unless otherwise disclosed to the Purchaser, the Ground
Lease does not permit any increase in the amount of rent payable by the
Ground Lessee thereunder during the term of the mortgage loan.
(E) To the best of the Seller's knowledge, at the Closing Date,
such Ground Lease is in full force and effect and no default has
occurred under such Ground Lease;
(F) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee; and such Ground
Lease, or an estoppel or consent letter received by the mortgagee from
the lessor, further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner described in such Ground
Lease or estoppel or consent letter;
(G) Except as indicated in the related title insurance policy or
opinion of title, the ground lessee's interest in the Ground Lease is
not subject to any liens or encumbrances superior to, or of equal
priority with, the related mortgage, other than the related ground
lessor's related fee interest.
(H) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such
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Ground Lease) to cure any default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease; and
(I) Such Ground Lease has an original term (including any
extension options set forth therein) that extends not less than 10 years
beyond the Maturity Date of the related Mortgage Loan.
(J) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds other than in
respect to 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 lessee's mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
the repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence of
an uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee, or in any manner, which would
adversely affect the security provided by the related Mortgage.
(xli) With respect to any Mortgage Loan that is secured in whole
or in part by a Mortgage Property which is operated as a residential
health care facility (a "Facility");
(A) All governmental licenses, permits, regulatory agreements or
other approvals or agreements necessary or desirable for the use and
operation of each Facility as intended are held by the related Mortgagor
or the operator of the Facility, which is affiliated with such
Mortgagor, and are in full force and effect, including, without
limitation, a valid certificate of need ("CON") or similar certificate,
license, or approval issued by the applicable department of health for
the requisite number of beds, and approved provider status in any
approved provider payment program (collectively, the "Licenses").
(B) The Licenses (a) may not be, and have not been, transferred
to any location other than the Facility; (b) have not been pledged as
collateral security for any other loan or indebtedness; and (c) are held
free from restrictions or known conflicts which would materially impair
the use or operation of the Facility as intended, and are not
provisional, probationary or restricted in any way.
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(C) As of the date of origination of the Mortgage Loan, the
Facility has not received a "Level A" (or equivalent) violation, and no
statement of charges or deficiencies has been made or penalty
enforcement action has been undertaken against the Facility, its
operator or the Mortgagor or against any officer, director or
stockholder of such operator or the Mortgagor by any governmental agency
during the last three calendar years, and there have been no violations
over the past three years which have threatened the Facility's, the
operator's or the Mortgagor's certification for participation in
Medicare or Medicaid or the other third-party payors' programs, if such
Facility relied on any such programs for a substantial portion of its
revenues at the time of origination of the Mortgage Loan.
(c) If the Seller receives notice of a Document Defect or a Breach (the
"Defect/Breach Notice"), then the Seller shall within 90 days after its receipt
of the Defect/Breach Notice (i) 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 (ii) repurchase the
affected First Union Mortgage Loan (or the related mortgaged property) from the
Trustee at a price equal to the Purchase Price; provided, however, that if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, the Seller shall
have an additional 90 days to complete such cure; and provided, further, that
with respect to such additional 90-day period the Seller shall have delivered an
Officer's Certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such breach will be cured within the
additional 90-day period. 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.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Purchaser has the
full corporate power and authority and legal right to acquire the First Union
Mortgage
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Loans from the Seller and to transfer the First Union Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and will be obtained on a timely basis), no consent, approval, authorization or
order of, registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction described in
this Agreement.
(d) None of the acquisition of the First Union Mortgage Loans by the
Purchaser, the transfer of the First Union Mortgage Loans to the Trustee, and
the execution, delivery or performance of this Agreement and by the Purchaser,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's Articles of Incorporation or Bylaws, (B) any term or provision of
any material agreement, contract, instrument or indenture, to which the
Purchaser is a party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets.
(e) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Purchaser will report the transfer of the First
Union Mortgage Loans by the Seller to the Purchaser as a sale of the First Union
Mortgage Loans to the Purchaser in exchange for consideration consisting of an
amount equal to the Seller's pro rata portion of the proceeds of the sale of the
Certificates by the Purchaser to the Underwriters (the Seller's pro rata portion
to be determined according to the percentage that the First Union Balance
represents of the Initial Pool Balance) pursuant to the Underwriting Agreement
and the Certificate Purchase Agreement.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of
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Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd Street, New York,
New York 10022 at 10:00 A.M., New York time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth in
Sections 3(a), 3(b) and 3(c) of this Agreement and all of the representations
and warranties of the Purchaser set forth in Section 4 of this Agreement shall
be true and correct in all material respects as of the Closing Date;
(b) All documents specified in Section 6 of this Agreement (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the Purchaser,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian and
the Master Servicer, respectively, all documents represented to have been or
required to be delivered to the Trustee and the Master Servicer pursuant to
Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with and
the Seller shall have the ability to comply with all terms and conditions and
perform all duties and obligations required to be complied with or performed
after the Closing Date; and
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
First Union Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the Purchaser and the
Underwriters may rely, to the effect that: (1) the representations and
warranties of the Seller 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 such
date; and (ii) the Seller has, in all material
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respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the date hereof;
(c) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, dated the Closing Date, and upon which the Purchaser
may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, dated the Closing Date, and upon which the Purchaser
and the Underwriters may rely, to the effect that (i) such officer has carefully
examined the Prospectus (as defined in the Underwriting Agreement) and nothing
has come to his attention that would lead him to believe that the Prospectus, as
of the date of the Prospectus Supplement (as defined in the Underwriting
Agreement) or as of the Closing Date, included or includes any untrue statement
of a material fact or omitted or omits to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (ii) such officer has examined
the Memorandum (as defined in the Certificate Purchase Agreement) and nothing
has come to his attention that would lead him to believe that the Memorandum, as
of the date thereof or as of the Closing Date, included or includes any untrue
statement of a material fact or omitted or omits to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The resolutions of the requisite loan committee authorizing the
Seller's entering into the transactions contemplated by this Agreement, the
articles of association and by-laws of the Seller, and a certificate of good
standing of the Seller issued by the Office of the Comptroller of the Currency
of the United States not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of Paul C. Hurdle, III, counsel for the Seller, in
form and substance acceptable to the Purchaser and its counsel, with any
modifications required by the rating agencies identified in the Prospectus
Supplement (the "Rating Agencies"), dated the Closing Date and addressed to the
Purchaser, the Underwriters and each of the Rating Agencies, together with such
other written opinions as may be required by the Rating Agencies; and
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(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 7. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or the Underwriters within the meaning of either
Section 15 of the Securities Act of 1933 (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934 (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 in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, in any amendment
thereof or supplement thereto, the Private Placement Memorandum, Computational
Materials or ABS Term Sheets distributed by either Underwriter or arise out of
or are based upon any 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 in which they were made, not misleading, which
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon any information furnished to the Purchaser by the Seller
or approved by the Seller, or upon any document delivered to the Purchaser by
the Seller, or upon any of the representations, warranties, covenants or
agreements of the Seller as set forth in this Agreement (collectively, the
"Seller's Information"), it being acknowledged that the statements set forth in
the Prospectus Supplement under the caption "Description of the Mortgage Pool"
or elsewhere in the Prospectus Supplement with respect to the subjects discussed
under such caption and statements in the Private Placement Memorandum,
Computational Materials and ABS Term Sheet, to the extent relating to or based
(in whole or in part) on information relating to the First Union Mortgage Loans
or the Seller, are to be the only statements made in reliance upon information
furnished or approved by the Seller, or upon documents delivered to the
Purchaser by the Seller, or upon any of the representations, warranties,
covenants or agreements of the Seller as set forth in this Agreement. The Seller
further agrees to indemnify and hold harmless the Purchaser, the Underwriters,
their respective officers and directors, and each person, if any, who controls
the Purchaser or the Underwriters within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity with reference to the inclusion of information substantially identical
to that included in the Prospectus Supplement with respect to the Seller's
Information in the Memorandum or any amendment thereof or supplement thereto.
This
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indemnity agreement will be in addition to any liability which the Seller may
otherwise have.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (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 it from any liability that
it may have to any indemnified party 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 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 that 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 for
any legal or other expenses subsequently incurred by such 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, approved by the Purchaser, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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 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 only be in respect of the counsel referred to in such
clause (i) or (iii).
(c) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under Section 7(a) hereof or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then the
indemnifying
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party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities, in such proportion as is appropriate to
reflect the relative fault of the indemnified and indemnifying parties in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
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 such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. 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 guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
7 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Purchaser, the
Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(f) The Underwriters shall be third-party beneficiaries of the
provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser
to the extent that the Purchaser has paid) the Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the First Union Balance
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represents the Initial Pool Balance): (i) the costs and expenses of printing (or
otherwise reproducing) and delivering a preliminary and final Prospectus and
Memorandum relating to the Certificates; (ii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iii) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (iv) the fees charged by the Rating Agencies to rate
the Certificates so rated; (v) the expense of recording any assignment of
Mortgage or assignment of Assignment of Leases as contemplated by Section 2
hereof; and (vi) the cost of obtaining a "comfort letter" from a firm of
certified public accountants selected by the Purchaser with respect to numerical
information in respect of the First Union Mortgage Loans and the Seller included
in the Prospectus and Memorandum. All other costs and expenses in connection
with the transactions contemplated hereunder shall be borne by the party
incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of the
parties hereto that the conveyance of the First Union Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the First Union Mortgage Loans by the Seller to the Purchaser and not
as a pledge of the First Union Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller. However, if, notwithstanding
the aforementioned intent of the parties, the First Union Mortgage Loans are
held to be property of the Seller, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the First Union Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, and (b) (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (ii) the conveyance provided for in Section 2 hereof shall be
deemed to be a grant by the Seller to the Purchaser of a security interest in
all of the Seller's right, title and interest in and to the First Union Mortgage
Loans, and all amounts payable to the holder of the First Union Mortgage Loans
in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account (each as defined in the
Pooling and Servicing Agreement) whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
Custodian, of the Mortgage 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
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security interest pursuant to Section 9-305 of the New York Uniform Commercial
Code; and (v) notifications to persons (other than the Trustee) 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 secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the First Union
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the First Union Mortgage
Loans by the Seller to the Purchaser (and by the Purchaser to the Trustee).
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SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser, and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 7.
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SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
SELLER
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Lawrence A. Brown
-------------------------------------
Name: Lawrence A. Brown
Title: Senior Vice President
Address for Notices:
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0600
New York, New York 10281
Attention:
Telecopier No.: (704) 374-6435
Telephone No.: (704) 383-7721
PURCHASER
MERRILL LYNCH MORTGAGE
INVESTORS, INC.
By: /s/ Bruce L. Ackerman
-------------------------------------
Name: Bruce L. Ackerman
Title: Vice President
Address for Notices:
World Financial Center
New York, New York 10281
Attention:
Telecopier No.: (212) 449-7684
Telephone No.: (212) 449-5849
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
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<TABLE>
<CAPTION>
First Union Only
MLMI 1996 - C1
MORTGAGE LOAN SCHEDULE
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Control # Property Name Address City State Zipcode
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<S> <C> <C> <C> <C> <C>
101 Weavers Mill 91 Elm Street Manchester CT 06040
102 Cedar Springs Apartments 1750 East Karen Avenue Las Vegas NV 89109
103 Desert Springs Apartments 1500 Karen Avenue Las Vegas NV 89109
104 33 Gold Street 33 Gold Street New York NY 10038
105 West Kentucky Outlet Center 208 Outlet Avenue Eddyville KY 42038
107 Rancho Vista Retirement and Health Ce 760 East Bobier Drive Vista CA 92084
108 Candletree Apartments 5280 Tamarack Circle East Columbus OH 43229
109 123 West 44th Street 123 West 44th Street New York NY 10036
111 Mark Twain 170 Steamboat Lane Ballwin MO 63011
112 220 East 22nd Street 220 East 22nd Street New York NY 10010
113 Hunter Mill Plaza 2946-2952 Chain Bridge Road Oakton VA 22124
207 Wisconsin Rapids - Public Warehouse 1941 Engle Rd. Wisconsin Rapids WI 54494
114 Sierra Apartments and Townhomes 2901 Haine Drive Harlingen TX 78550
216 Northwood Apartments 4200 Loch Raven Blvd. Baltimore MD 21218
115 Greentree Apartments 710 Appletree Court Claymont DE 19703
117 Gardner Street Apartments 75, 84, 88 & 90 Gardner Street Allston MA 02134
118 210 East 22nd Street 210 East 22nd Street New York NY 10010
119 Shops of Dunwoody 550 Chamblee Dunwoody Road Dunwoody GA 30338
116 Kings Point Plaza W. Atlantic Ave. and Carter/Jog Delray Beach Fl 33446
120 Yarn Mill 210 Pine Street Manchester CT 06040
121 Fox Meadows 1457 Burke Avenue N.E. Grand Rapids MI 49505
213 Hollyview Apartments 5555 Hollyview Houston TX 77091
124 Duval Villa 4305 Duval Street Austin TX 78751
122 Windtree I & II Apartments 3630 and 3631 Brennan Blvd. Amarillo TX 79121
214 Willowbend Apartments 13949 Bammel North Houston TX 77066
126 Schofield Warehouse 3606 Concord Avenue Schofield WI 54476
125 Shoppes at Sawgrass Commons 13001-13191 West Sunrise Blvd. Sunrise FL 33323
217 Hampton House Apartments 204 East Joppa Road Baltimore County MD 21286
127 Van Mark Apartments 3980 Old Sterlington Road Monroe LA 71203
130 Quality Logistics 1709 I-45 South Hutchins TX 75141
128 Cedar Creek Apartments 3991 Camino Juliana Santa Fe NM 87501
129 Carroll Plaza Shopping Center 250 Englar Road Westminster MD 21157
131 Cedar Ridge 2082 Knoll Crest Arlington TX 76014
134 35 Main Street 35 Main Street Westport CT 06880
135 Hacienda Healthcare 361 East Grangeville Boulevard Hanford CA 93230
136 Sutton Park Apartments 517 East Edgewood Blvd Lansing MI 48911
137 Zelda Place Shopping Center 2900-3000 Zelda Road Montgomery AL 36116
138 The Spanish Mission Apartments 422 Connell Road Valdosta GA 31602
140 Commerce Plaza 7000-7034 Commerce Street Springfield VA 22150
141 Blue River Apartments 1251 Adams Avenue Silverthorne CO 80498
142 Central High School 30 West Colfax Avenue South Bend IN 46601
143 KMart Plaza 863 S. Main Street Lapeer MI 48446
144 Hamilton Plaza West 74 Main Street 680,686 & 700 Framingham MA 01701
145 Melody Place Apartments 6852 Shady Brook Lane Dallas TX 75231
<CAPTION>
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Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
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101 10,903,261.39 80,850.28 8.090 117 357 1/1/06 No 200 per unit
102 10,735,525.86 78,879.69 8.000 118 358 2/1/06 No 238 per unit
103 10,735,525.86 78,879.69 8.000 118 358 2/1/06 No 238 per unit
104 10,025,710.40 77,134.87 8.250 117 327 1/1/06 Yes 325 per unit
105 9,570,125.49 74,891.05 8.125 117 297 1/1/06 No .10 per sq. ft.
107 7,985,069.45 65,771.49 8.750 118 298 2/1/06 No 256 per unit
108 7,786,890.07 58,533.19 8.000 118 328 2/1/06 No 283 per unit
109 7,680,960.48 58,439.15 8.125 117 327 1/1/06 Yes 435 per unit
111 6,771,112.04 52,483.50 8.000 116 296 12/1/05 No 302 per unit
112 6,584,048.62 50,655.74 8.250 117 327 1/1/06 No 372 per unit
113 6,335,303.75 49,682.07 8.150 117 297 1/1/06 No .68 per sq. ft.
207 6,294,267.36 52,352.64 8.880 119 299 3/1/06 No .10 per sq. ft.
114 5,991,772.95 43,650.01 7.910 118 358 2/1/06 No 218 per unit
216 5,545,759.33 43,553.17 8.500 83 329 3/1/03 No 250 per unit
115 5,186,917.85 39,128.33 8.030 81 327 1/1/03 No 275 per unit
117 4,994,634.80 38,177.70 7.875 83 299 3/1/03 No 240 per unit
118 4,838,278.15 37,224.29 8.250 117 327 1/1/06 No 415 per unit
119 4,835,210.54 38,239.83 8.250 117 297 1/1/06 No .10 per sq. ft.
116 4,772,827.00 40,498.10 9.125 119 299 3/1/06 No .29 per sq. ft.
120 4,569,389.68 33,883.11 8.090 117 357 1/1/06 No 200 per unit
121 4,542,240.45 33,897.02 7.920 118 328 2/1/06 No 225 per unit
213 4,446,472.08 34,307.09 8.300 83 329 3/1/03 No 200 per unit
124 4,206,822.06 32,209.19 8.420 115 355 11/1/05 No 235 per unit
122 4,133,613.18 31,397.76 8.125 119 329 3/1/06 No 318 per unit
214 4,121,729.73 31,801.52 8.300 83 329 3/1/03 No 200 per unit
126 4,121,246.49 34,278.50 8.880 119 299 3/1/06 No .10 per sq. ft.
125 4,087,497.57 32,326.46 8.250 117 297 1/1/06 No .22 per sq. ft.
217 3,900,000.00 30,749.56 8.250 120 300 4/1/06 No 208 per unit
127 3,887,532.98 29,994.98 7.959 117 297 1/1/06 No 200 per unit
130 3,878,000.00 32,212.73 8.875 84 300 4/1/03 No .10 per sq. ft.
128 3,842,584.21 28,923.76 8.250 297 357 1/1/21 No 200 per unit
129 3,818,219.88 30,454.50 8.375 83 299 3/1/03 No .16 per sq. ft.
131 3,738,330.27 29,254.32 8.125 117 297 1/1/06 No 370 per unit
134 3,585,607.99 28,685.55 8.375 116 296 12/1/05 No .41 per sq. ft.
135 3,496,942.54 29,672.05 9.125 119 299 3/1/06 No 250 per unit
136 3,394,285.42 25,514.47 8.000 118 328 2/1/06 No 289 per unit
137 3,303,473.93 25,943.57 8.500 119 329 3/1/06 No .25 per sq. ft.
138 3,297,349.92 25,282.59 8.230 119 329 3/1/06 No 307 per unit
140 3,165,119.63 24,768.65 8.125 117 297 1/1/06 No .75 per sq. ft.
141 3,125,891.23 23,240.16 8.125 298 358 2/1/21 No 200 per unit
142 3,016,025.81 22,408.57 8.125 299 359 3/1/21 Yes 200 per unit
143 3,001,400.93 23,462.56 8.100 116 296 12/1/05 No .20 per sq. ft.
144 2,994,045.04 23,904.63 8.375 118 298 2/1/06 No .14 per sq. ft.
145 2,873,211.71 22,723.13 8.250 297 297 1/1/21 No 205 per unit
<CAPTION>
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Control # Servicing Subserv Strip Subservicer
Fees Fee
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101 0.0775 0.1250 Arbor
102 0.0775 0.0550 GMAC
103 0.0775 0.0550 GMAC
104 0.0775 0.0400 First Union
105 0.0775 0.0400 GMAC
107 0.0775 0.0400 First Union
108 0.0775 0.0400 First Union
109 0.0775 0.0400 First Union
111 0.0775 0.0400 First Union
112 0.0775 0.0400 First Union
113 0.0775 0.0400 First Union
207 0.0775 0.0400 First Union
114 0.0775 0.1250 Arbor
216 0.0775 0.0750 GMAC
115 0.0775 0.0400 First Union
117 0.0775 0.0400 First Union
118 0.0775 0.0400 First Union
119 0.0775 0.0400 First Union
116 0.0775 0.0400 First Union
120 0.0775 0.1250 Arbor
121 0.0775 0.0750 GMAC
213 0.0775 0.0750 GMAC
124 0.0775 0.1250 0.2350 Arbor
122 0.0775 0.0400 First Union
214 0.0775 0.0750 GMAC
126 0.0775 0.0400 First Union
125 0.0775 0.0400 First Union
217 0.0775 0.0750 GMAC
127 0.0775 0.0400 First Union
130 0.0775 0.0400 First Union
128 0.0775 0.0400 First Union
129 0.0775 0.0400 First Union
131 0.0775 0.0400 First Union
134 0.0775 0.0400 First Union
135 0.0775 0.0400 First Union
136 0.0775 0.0400 First Union
137 0.0775 0.0400 First Union
138 0.0775 0.0400 First Union
140 0.0775 0.0400 First Union
141 0.0775 0.0400 First Union
142 0.0775 0.0400 First Union
143 0.0775 0.0400 First Union
144 0.0775 0.0400 First Union
145 0.0775 0.0400 First Union
</TABLE>
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<TABLE>
<CAPTION>
First Union Only
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Control # Property Name Address City State Zipcode
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<S> <C> <C> <C> <C> <C>
147 Liberty West 3526 Langrehr Road Baltimore MD 21244
148 Spencerwood Shopping Center 9695 Spencer Highway Deer Park TX 77536
149 Brookshire Apartments 3915 Hunters Ridge Road Lansing MI 48911
150 Terrace View VI 6800-C Hunt Club Road Blacksburg VA 24060
152 Kinsor Towers 1169 Ocean Avenue Brooklyn NY 11230
153 1112 M Street 1112 M Street Washington DC 20005
154 Lakeview Village Apartments 8831 North 96th Street Milwaukee WI 53224
155 Mark Greenville Apartments 481 Cypress Lane Greenville MS 38701
156 Palm Oasis Apartments 802 North 30th Street Phoenix AZ 85008
158 Village @ Eland Route 113 & Ross Lane Phoenixville PA 19460
157 Discovery Zone Center 20-30 Backus Avenue Danbury CT 06810
160 Huntington Retirement Hotel 20920 Earl Street Torrance CA 90503
161 Waples Mobile Home Park Lee Higway (Route 29) at Via Drive Fairfax VA 22030
162 Royale Apartments 3593 Buford Highway Atlanta GA 30329
166 Roebuck Shopping Center 9323-9333 Parkway East Birmingham AL 35215
167 The Courtyard 3600 Woodman Drive Grand Chute WI 54914
168 Fiesta Del Norte Shopping Center 6001 San Mateo Blvd. Alberquerque NM 87109
170 Stephenson Mill 322 East Colfax South Bend IN 46601
171 2881-2883 Third Avenue 2881-2883 Third Avenue Bronx NY 10455
172 Angels for the Elderly 44, 48, 52 Angels Court Montgomery AL 36109
174 Graystone Apartments 1109 San Marcus Parkway San Marcus TX 78667
173 Bull Run Mobile Home Park 7410 Old Centreville Rd. (Route 616) Manassas VA 22110
215 690 Gerard Avenue 690 Gerard Avenue Bronx NY 10451
176 Pinedale II Apartments 384 Cedar Street Menomonie WI 54028
185 Peachtree Avenue Apartments 23-25-26-29-33 Peachtree Avenue Atlanta GA 30305
179 Park East Apartments 508 San Pablo Drive Las Vegas NV 89119
180 1102-1130 Washington Street 1102-1130 Washington Street Boston MA 02116
182 Kendale 1037 Maiden Choice Lane Baltimore MD 21229
181 111 East 167th Street 111 East 167th Street Bronx NY 10452
186 Westgate Manor Apartments 7208 Southwest 34th Avenue Amarillo TX 79109
212 Morningstar 123 & 135 White Drive Tallahassee FL 32304
187 Omni Apartments 4602 54th Street, Lubbock County Lubbock TX 79414
184 Riverloft 550-555 Pearl Street Reading PA 19602
110 Wisconsin Rapids - Int'l Paper 2810 Industrial Street Wisconsin WI 54495
188 St. Croix Apartments 200 Oak Street Woodville WI 54028
192 Western Oaks Apartments 4601 52nd Street, Lubbock County Lubbock TX 79414
191 Escondido Manor Apartments 4280 Escondido Street Las Vegas NV 89119
211 Pinecrest West 1380 Ocala Road Tallahassee FL 32304
210 Castle Cove 2001-2057 Castle Drive Garland TX 75040
199 Rivertree Park 3627 Manchaca Road Austin TX 78704
195 101-109 State Street 101-109 State Street Boston MA 02109
<CAPTION>
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Remaining
Control # Cut-off Date Monthly Gross ------------------- Maturity Ground Ongoing
Balance Payment Rate Term Amort Date Lease Reserves
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147 2,840,784.23 21,874.07 8.250 116 326 12/1/05 No 250 per unit
148 2,739,445.90 22,375.87 8.625 116 296 12/1/05 No .10 per sq. ft.
149 2,695,664.54 20,722.80 8.250 118 328 2/1/06 No 261 per unit
150 2,584,359.58 19,608.74 8.085 116 326 12/1/05 No 295 per unit
152 2,542,224.10 20,105.48 8.250 117 297 1/1/06 No 400 per unit
153 2,541,564.41 19,353.22 8.125 116 326 12/1/05 No 242 per unit
154 2,524,939.12 19,410.36 8.250 118 328 2/1/06 No 245 per unit
155 2,504,555.93 18,924.93 8.039 116 326 12/1/05 No 214 per unit
156 2,496,718.23 18,562.43 8.125 298 358 2/1/21 No 200 per unit
158 2,237,738.72 17,661.28 8.250 83 299 3/1/03 No .18 per sq. ft.
157 2,216,104.94 17,729.27 8.375 116 296 12/1/05 No .39 per sq. ft
160 2,098,165.52 17,803.23 9.125 119 299 3/1/06 No 301.71 per unit
161 1,893,917.49 14,601.63 7.950 117 297 1/1/06 No 47 per unit
162 1,893,441.10 14,116.14 7.890 116 326 12/1/05 No 297 per unit
166 1,748,304.36 14,091.47 8.500 119 299 3/1/06 No .25 per sq. ft.
167 1,747,598.32 13,316.47 8.375 296 356 12/1/20 No 150 per unit
168 1,714,806.07 13,630.38 8.310 117 297 1/1/06 No .35 per sq. ft.
170 1,613,943.57 11,991.33 8.125 299 359 3/1/21 Yes 200 per unit
171 1,596,951.70 13,018.69 8.625 118 298 2/1/06 No .10 per sq. ft.
172 1,512,621.20 12,576.09 8.875 119 299 3/1/06 No 250 per unit
174 1,495,471.85 11,901.16 8.625 116 326 12/1/05 No 280 per unit
173 1,495,198.02 11,527.60 7.950 117 297 1/1/06 No 31 per unit
215 1,482,000.00 11,933.47 8.500 84 300 4/1/03 No 360 per unit
176 1,458,804.75 11,080.67 8.125 299 329 3/1/21 No 175 per unit
185 1,398,527.91 10,805.43 8.000 83 299 3/1/03 No 200 per unit
179 1,374,687.77 10,604.69 8.280 117 327 1/1/06 No 202 per unit
180 1,369,613.95 11,071.87 8.500 116 296 12/1/05 No .16 per sq. ft.
182 1,352,722.72 10,407.45 8.250 117 327 1/1/06 No 200 per unit
181 1,350,000.00 10,870.57 8.500 84 300 4/1/03 No 308 per unit
186 1,295,915.77 9,962.30 8.250 118 328 2/1/06 No 284 per unit
212 1,292,940.65 9,820.81 8.125 119 329 3/1/06 No 206 per unit
187 1,292,920.59 9,939.27 8.250 118 328 2/1/06 No 258 per unit
184 1,263,034.20 9,919.14 8.500 119 329 3/1/06 No 255 per unit
110 1,173,930.82 9,764.18 8.880 119 299 3/1/06 No .10 per sq. ft.
188 1,138,825.44 8,893.31 8.125 299 299 3/1/21 No 175 per unit
192 1,025,160.05 7,786.83 8.125 119 329 3/1/06 No 267 per unit
191 1,019,543.47 7,865.02 8.280 117 327 1/1/06 No 240 per unit
211 1,019,164.96 7,741.29 8.125 119 329 3/1/06 No 308 per unit
210 907,041.10 7,825.35 8.375 118 238 2/1/06 No 276 per unit
199 830,000.00 6,840.72 8.780 120 300 4/1/06 No 293 per unit
195 797,705.55 6,509.35 8.625 117 297 1/1/06 No .27 per sq. ft.
Totals/Wtg.
Averages: -------------- ------------ ------ --- ---
85 Loans 299,697,292.72 2,324,865.58 8.2628 126 321
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Control # Servicing Subserv Strip Subservicer
Fees Fee
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147 0.0775 0.0400 First Union
148 0.0775 0.0400 First Union
149 0.0775 0.0400 First Union
150 0.0775 0.0400 First Union
152 0.0775 0.0400 First Union
153 0.0775 0.0400 First Union
154 0.0775 0.0400 First Union
155 0.0775 0.0400 First Union
156 0.0775 0.0400 First Union
158 0.0775 0.0400 First Union
157 0.0775 0.0400 First Union
160 0.0775 0.0400 First Union
161 0.0775 0.0400 First Union
162 0.0775 0.0400 First Union
166 0.0775 0.0400 First Union
167 0.0775 0.0400 First Union
168 0.0775 0.0400 First Union
170 0.0775 0.0400 First Union
171 0.0775 0.0400 First Union
172 0.0775 0.1250 Continental Wingate
174 0.0775 0.0400 First Union
173 0.0775 0.0400 First Union
215 0.0775 0.0400 First Union
176 0.0775 0.0400 First Union
185 0.0775 0.0400 First Union
179 0.0775 0.0400 First Union
180 0.0775 0.0400 First Union
182 0.0775 0.0400 First Union
181 0.0775 0.0400 First Union
186 0.0775 0.0400 First Union
212 0.0775 0.0400 First Union
187 0.0775 0.0400 First Union
184 0.0775 0.0400 First Union
110 0.0775 0.0400 First Union
188 0.0775 0.0400 First Union
192 0.0775 0.0400 First Union
191 0.0775 0.0400 First Union
211 0.0775 0.0400 First Union
210 0.0775 0.0400 First Union
199 0.0775 0.0400 First Union
195 0.0775 0.0400 First Union
</TABLE>
Note:
"Servicing Fees" includes Master Servicing Fee and Trustee Fee
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