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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 25, 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
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
World Financial Center
North Tower
New York, New York 10281
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(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (212) 449-0336
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Item 1, Items 3 through 6, and Items 8 and 9 are not included because they are
not applicable.
Item 2. Acquisition or Disposition of Assets.
On November 25, 1996, a single series of mortgage pass-through
certificates, entitled Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2 (the "Certificates"), was issued
pursuant to a pooling and servicing agreement (the "Pooling Agreement") attached
hereto as Exhibit 4.1 and dated as of November 1, 1996, among Merrill Lynch
Mortgage Investors, Inc. as depositor (the "Registrant"), First Union National
Bank of North Carolina as master servicer, CRIIMI MAE Services Limited
Partnership as special servicer and State Street Bank and Trust Company as
trustee. The Certificates consist of fourteen classes (each, a "Class") of
Certificates, eight of which Classes are designated as the "Class A-1
Certificates", the "Class A-2 Certificates", the "Class A-3 Certificates", the
"Class B Certificates", the "Class C Certificates", the "Class D Certificates",
the "Class E Certificates" and the "Class IO Certificates" (collectively, the
"Offered Certificates"); and six of which Classes are designated as the "Class F
Certificates", the "Class G Certificates", the "Class H 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 300 multifamily and commercial
mortgage loans (the "Mortgage Loans") having an aggregate principal balance as
of November 1, 1996 (the "Cut-off Date") of $1,138,308,859. Each Mortgage Loan
is secured by a first mortgage lien on a fee simple estate in an income
producing property with the exception of six Mortgage Loans which are fully
secured by a leasehold estate in income-producing real property.
One hundred forty-two (142) of the Mortgage Loans (the "MLMC Loans")
showing an aggregate principal balance of $557,591,016.32 (the "MLMC Balance"),
were acquired by the Registrant from Merrill Lynch Mortgage Capital Inc.
("MLMC") and one hundred fifty-eight (158) of the Mortgage Loans (the "FUNBNC
Loans"), having an aggregate principal balance of $580,717,843.40 (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 November 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 105.0625% of the MLMC Balance and 100% 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 November 20, 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 November 25, 1996, among the
Registrant, MLPF&S and First Union (pertaining to the Private Certificates). The
Registrant is a wholly-owned limited purpose finance subsidiary of MLMC. On
November 25, 1996, the Registrant
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transferred the Mortgage Loans to the Trust Fund pursuant to the Pooling
Agreement. The consideration received by the Registrant in exchange for such
transfer consisted of the Certificates.
The Certificates have the following initial Certificate Balances and
initial Pass-Through Rates:
Initial Pass-Through
Class Initial Certificate Balance Rate
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A-1....................... $311,042,000 6.69%
A-2....................... $130,587,000 6.82%
A-3....................... $343,805,000 6.96%
B ........................ $68,299,000 6.96%
C ........................ $62,607,000 6.96%
D ........................ $56,915,000 6.96%
E ....................... $28,458,000 6.96%
IO ...................... (1) (1)
F ....................... $62,607,000 6.96%
G ....................... $39,841,000 6.96%
H ....................... $34,147,895 6.96%
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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(1) The Class IO Certificates will receive the sum of the interest accrued on
the notional amount of 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.
The Offered Certificates and the Mortgage Loans are more particularly
described in the Prospectus, dated November 20, 1996, and the Prospectus
Supplement, dated November 20, 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 November 20, 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 November 1,
1996, among Merrill Lynch Mortgage Investors, Inc. as
depositor, First Union National Bank of North Carolina as
master servicer, Criimi Mae Services Limited Partnership as
special servicer and State Street Bank and Trust Company as
trustee
99.1 Mortgage Loan Purchase Agreement, dated as of November 1,
1996, between Merrill Lynch Mortgage Investors, Inc. and
Merrill Lynch Mortgage Capital Inc.
99.2 Mortgage Loan Purchase Agreement, dated as of November 1,
1996, between Merrill Lynch Mortgage Investors, Inc. and
First Union National Bank of North Carolina
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MERRILL LYNCH MORTGAGE INVESTORS, INC.
By: /s/ MICHAEL M. McGOVERN
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Name: Michael M. McGovern
Title: Secretary and Director
Dated: December 6, 1996
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EXHIBIT INDEX
The following exhibits are being filed herewith:
Exhibit No. Description
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1.1 Underwriting Agreement, dated as of November 20, 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 November 1, 1996, among
Merrill Lynch Mortgage Investors, Inc. as depositor, First Union
National Bank of North Carolina as master servicer, Criimi Mae
Services Limited Partnership as special servicer and State Street Bank
and Trust Company as trustee............................................
99.1 Mortgage Loan Purchase Agreement, dated as of November 1, 1996,
between Merrill Lynch Mortgage Investors, Inc. and Merrill Lynch
Mortgage Capital Inc....................................................
99.2 Mortgage Loan Purchase Agreement dated as of November 1, 1996, between
Merrill Lynch Mortgage Investors, Inc. and First Union National Bank
of North Carolina.......................................................
MERRILL LYNCH MORTGAGE INVESTORS, INC.
UNDERWRITING AGREEMENT
As of November 20, 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 November 20, 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
November 1, 1996 (the "Cut-off Date"), among the Company as depositor, State
Street Bank and Trust Company as trustee (the "Trustee"), First Union National
Bank of North Carolina as master servicer (the "Master Servicer") and CRIIMI Mae
Services Limited Partnership as special servicer (the "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
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included in such registration statement relating to the Certificates and the
plan of distribution thereof. Such registration statement, including the
exhibits thereto, as amended at the date hereof, is hereinafter called the
"Registration Statement"; the prospectus included in the Registration Statement,
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
November 20, 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.
The Company represents and warrants to each Underwriter as follows:
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. "
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.
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
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contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company is a party or by which it maybe 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 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.
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.
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.
This Agreement has been, 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
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provisions of this Agreement that purport to provide indemnification from
securities law liabilities.
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 delivery to the
Under-writers of the Certificates, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens.
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").
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.
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").
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.
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
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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.
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.
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.
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.
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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 November 25,
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.
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- 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.
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:
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 ").
For purposes hereof, "Computational Materials" shall have the meaning given
such term in the No-Action Letters, but shall include
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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.
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.
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 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.
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;
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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 Tenn Sheets (marked, "as revised") in
the materials delivered to the Company pursuant to subsection (iv) above.
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 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).
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.
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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.
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.
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:
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.
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.
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).
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
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<PAGE>
reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act
or the respective applicable miles and regulations of the Commission thereunder.
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.
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.
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.
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.
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, 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
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<PAGE>
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:
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.
On the Closing Date, each Underwriter shall have received:
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.
C. Each of the Pooling and Servicing Agreement and this Agreement,
upon due authorization, execution and
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<PAGE>
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.
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<PAGE>
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
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.
An opinion, dated the Closing Date, of counsel to the Underwriters,
acceptable to such Underwriter.
In giving their opinions required by subsection (b)(i) of this Section,
counsel to the Company shall additionally state (A) 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
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<PAGE>
therein, as to which no opinion need be rendered), at the date of the Basic
Prospectus, 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 and
(B) 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.
On the Closing Date, such Underwriter shall have received a favorable
opinion, dated the Closing Date, of tax and ERISA counsel to the Company 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 86OG 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.
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:
the representations and warranties of the Company in this Agreement are
true and correct in all material respects;
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
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.
The Company and the Underwriters shall have received from Deloitte,
certified public accountants, a letter dated the Closing
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Date, in form and substance satisfactory to such Underwriter, stating in effect
that:
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
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.
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.
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, including, without limitation, opinions of counsel
to the Trustee, the Master Servicer and the Special Servicer, 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.
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.
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<PAGE>
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 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).
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 parry 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
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<PAGE>
been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
If the indemnification provided for in this Section 7 is unavailable to an
indemnified parry 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 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.
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.
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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 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.
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.
This Agreement shall be subject to termination in the absolute discretion
of either Underwriter, by notice given to the Company,
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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.
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 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
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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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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/ ROBERT J. FITZPATRICK
------------------------------
Name: Robert J. Fitzpatrick
Title: Director
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ RICHARD J. SIGG
-----------------------------
Name: Richard J. Sigg
Title: Director
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ R. OWEN WILLIAMS
-----------------------------
Name: R. Owen Williams
Title: Managing Director of
Fixed Income
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SCHEDULE I
UNDERWRITING AGREEMENT, DATED AS OF NOVEMBER 20 1996
CUT-OFF DATE: November 1, 1996
CERTIFICATES: Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-C2
<TABLE>
<CAPTION>
Initial Aggregate Initial Aggregate
Certificate Certificate
Initial Aggregate Balance or Balance or
Certificate Balance Notional Amount Notional Amount to
Class or Notional to be Purchased be Purchased Initial Pass-Through Purchase
Designation Amount of Class by Merrill Lynch by First Union Rate Price (4) Rating (5)
- ----------- --------------- ---------------- -------------- ---- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
A-1 $311,042,000.00 $155,521,000.00 $155,521,000.00 6.96% % AAA
A-2 130,587,000.00 65,293,500.00 65,293,500.00 6.82 AAA
A-3 343,805,000.00 171,902,500.00 171,902,500.00 6.96 AAA
IO (1) (2) (2) (3) AAA
B 68,299,000.00 34,149,500.00 34,149,500.00 6.96 AA
C 62,607,000.00 31,303,500.00 31,303,500.00 6.96 A
D 56,915,000.00 28,457,500.00 28,457,500.00 6.96 BBB
E 28,458,000.00 14,229,000.00 14,229,000.00 6.96 BBB-
</TABLE>
- ---------------------
(1) The Class IO Certificates will not have a Certificate Balance, but will
represent the right to receive the sum of the interest accrued on the
notional amount of each of its Components. The Class IO-1 Component will
have a notional amount equal to the aggregate Stated Principal Balance of
the Mortgage Loans and the Class IO-2 Component will have a notional amount
equal to the aggregate Certificate Balance of the Class A-1 Certificates
and Class A-2 Certificates.
(2) 50% of the notional amount of each of Component IO-1 and Component IO-2 of
the Class IO Certificates.
(3) The Class IO Certificates will accrue interest on the notional amount of
each of Component IO-1 and Component IO-2 as set forth in the Pooling and
Servicing Agreement.
(4) Expressed as a percentage of the initial aggregate Certificate Balance or
Notional Amount 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.
(5) By each of Fitch Investors Service, L.P., Duff & Phelps Credit Rating Co.
and, except with respect to the Class IO Certificates, Standard & Poor's
Ratings Services.
I-1
<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 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 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].
A-1
<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. AU
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 win 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).
A-2
EXECUTION COPY
===============================================================================
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Master Servicer
and
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
Special Servicer
and
STATE STREET BANK AND TRUST COMPANY
Trustee
----------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1996
----------
$1,138,308,859
Mortgage Pass-Through Certificates
Series 1996-C2
===============================================================================
<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 Servicing Fee............................................. 4
Additional Servicing Fee Rate........................................ 4
Additional Trust Fund Expense........................................ 4
Advance.............................................................. 5
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............................................ 6
Authenticating Agent................................................. 6
Available Distribution Amount........................................ 6
Balloon Mortgage Loan................................................ 7
Balloon Payment...................................................... 7
Bankruptcy Code...................................................... 7
Book-Entry Certificate............................................... 7
Breach............................................................... 7
Business Day......................................................... 7
CERCLA............................................................... 7
Certificate.......................................................... 7
Certificate Account.................................................. 7
Certificate Factor................................................... 7
Certificate Notional Amount.......................................... 7
Certificate Owner.................................................... 8
Certificate Principal Balance........................................ 8
Certificate Register................................................. 8
Certificate Registrar................................................ 8
Certificateholder.................................................... 8
Class................................................................ 8
Class A-1 Certificate................................................ 8
Class A-2 Certificate................................................ 9
Class A-3 Certificate................................................ 9
Class B Certificate.................................................. 9
i
<PAGE>
Class C Certificate.................................................. 9
Class D Certificate.................................................. 9
Class E Certificate.................................................. 9
Class F Certificate.................................................. 9
Class G Certificate.................................................. 9
Class H Certificate.................................................. 9
Class IO Certificate................................................. 9
Class Prepayment Percentage.......................................... 9
Class Principal Balance.............................................. 10
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-2a...................................................... 11
Component IO-2b...................................................... 11
Component............................................................ 11
Component Notional Amount............................................ 11
Controlling Class.................................................... 11
Controlling Class Representative..................................... 11
Corporate Trust Office............................................... 11
Corrected Mortgage Loan.............................................. 11
Custodian............................................................ 11
Cut-off Date......................................................... 11
Cut-off Date Balance................................................. 11
DCR.................................................................. 12
Debt Service Coverage Ratio.......................................... 12
Defaulted Mortgage Loan.............................................. 12
Definitive Certificate............................................... 12
Depositor............................................................ 12
Depository........................................................... 12
Depository Participant............................................... 12
Determination Date................................................... 13
Directly Operate..................................................... 13
Disqualified Organization............................................ 13
Distributable Certificate Interest................................... 13
Distribution Account................................................. 14
Distribution Date.................................................... 14
Distribution Date Statement.......................................... 14
Document Defect...................................................... 14
Due Date............................................................. 14
Eligible Account..................................................... 14
ii
<PAGE>
Environmental Assessment............................................. 14
ERISA................................................................ 15
Escrow Payment....................................................... 15
Event of Default..................................................... 15
Exchange Act......................................................... 15
Extension Adviser.................................................... 15
Extension Adviser Fee................................................ 15
FDIC................................................................. 15
FHLMC................................................................ 15
Final Recovery Determination......................................... 15
First Union Capital.................................................. 15
Fitch................................................................ 15
FNMA................................................................. 16
Ground Lease......................................................... 16
Hazardous Materials.................................................. 16
Holder............................................................... 16
HUD-Approved Servicer................................................ 16
Impound Reserve...................................................... 16
Independent.......................................................... 16
Independent Appraiser................................................ 16
Independent Contractor............................................... 16
Insurance Policy..................................................... 17
Insurance Proceeds................................................... 17
Interested Person.................................................... 17
Investment Account................................................... 17
Issue Price.......................................................... 17
Late Collections..................................................... 17
Liquidation Event.................................................... 17
Liquidation Proceeds................................................. 18
Loan-to-Value Ratio.................................................. 18
Majority Subordinate Certificateholder............................... 18
Master Servicer...................................................... 18
Master Servicer Strip................................................ 18
Master Servicer Strip Rate........................................... 19
Master Servicing Fee................................................. 19
Master Servicing Fee Rate............................................ 19
Merrill Lynch........................................................ 19
Monthly Payment...................................................... 19
Mortgage............................................................. 19
Mortgage File........................................................ 19
Mortgage Loan........................................................ 20
Mortgage Loan Purchase Agreements.................................... 21
Mortgage Loan Schedule............................................... 21
Mortgage Loan Seller................................................. 21
Mortgage Note........................................................ 21
iii
<PAGE>
Mortgage Pool........................................................ 21
Mortgage Rate........................................................ 22
Mortgaged Property................................................... 22
Mortgagor............................................................ 22
Net Aggregate Prepayment Interest Shortfall.......................... 22
Net Investment Earnings.............................................. 22
Net Investment Loss.................................................. 22
Net Mortgage Rate.................................................... 22
Net Operating Income................................................. 23
New Lease............................................................ 23
Nonrecoverable Advance............................................... 23
Nonrecoverable P&I Advance........................................... 23
Nonrecoverable Servicing Advance..................................... 23
Non-Registered Certificate........................................... 23
Non-United States Person............................................. 23
Officers' Certificate................................................ 23
Opinion of Counsel................................................... 23
Original Component Notional Amount................................... 23
Original Class Principal Balance..................................... 23
OTS.................................................................. 23
Ownership Interest................................................... 24
Pass-Through Rate.................................................... 24
Paying Agent......................................................... 24
Penalty Interest..................................................... 24
Percentage Interest.................................................. 24
Permitted Investments................................................ 25
Permitted Transferee................................................. 26
Person............................................................... 27
Phase I Environmental Assessment..................................... 27
P&I Advance.......................................................... 27
P&I Advance Date..................................................... 27
Plurality Residual Certificateholder................................. 27
Prepayment Assumption................................................ 27
Prepayment Interest Excess........................................... 27
Prepayment Interest Shortfall........................................ 27
Prepayment Premium................................................... 27
Prime Rate........................................................... 27
Principal Distribution Amount........................................ 28
Principal Prepayment................................................. 29
Principal Recovery Fee............................................... 29
Prospectus........................................................... 29
Prospectus Supplement................................................ 29
Purchase Price....................................................... 29
Qualified Insurer.................................................... 29
Rating Agency........................................................ 30
iv
<PAGE>
Realized Loss........................................................ 30
Record Date.......................................................... 30
Registered Certificate............................................... 30
Regular Certificate.................................................. 30
Reimbursement Rate................................................... 30
REMIC................................................................ 30
REMIC I.............................................................. 30
REMIC I Regular Interest............................................. 31
REMIC I Remittance Rate.............................................. 31
REMIC II............................................................. 31
REMIC II Regular Interest............................................ 31
REMIC II Remittance Rate............................................. 31
REMIC III............................................................ 31
REMIC III Certificate................................................ 31
REMIC Administrator.................................................. 31
REMIC Provisions..................................................... 32
Rents from Real Property............................................. 32
REO Account.......................................................... 32
REO Acquisition...................................................... 32
REO Disposition...................................................... 32
REO Extension........................................................ 32
REO Loan............................................................. 32
REO Property......................................................... 33
REO Revenues......................................................... 33
REO Tax.............................................................. 33
Request for Release.................................................. 33
Required Appraisal................................................... 33
Required Appraisal Mortgage Loan..................................... 33
Required Appraisal Loan Value........................................ 33
Required Appraisal Value............................................. 33
Reserve Account...................................................... 33
Reserve Funds........................................................ 34
Residual Certificate................................................. 34
Responsible Officer.................................................. 34
Scheduled Payment.................................................... 34
Securities Act....................................................... 34
Senior Certificate................................................... 34
Servicing Account.................................................... 34
Servicing Advances................................................... 34
Servicing Fees....................................................... 35
Servicing File....................................................... 35
Servicing Officer.................................................... 35
Servicing Standard................................................... 35
Servicing Transfer Event............................................. 35
Single Certificate................................................... 36
v
<PAGE>
Special Servicer..................................................... 36
Special Servicing Fee................................................ 36
Special Servicing Fee Rate........................................... 36
Specially Serviced Mortgage Loan..................................... 36
Standard & Poor's.................................................... 38
Startup Day.......................................................... 38
State and Local Taxes................................................ 38
Stated Maturity Date................................................. 38
Stated Principal Balance............................................. 38
Stripped Mortgage Loan............................................... 39
Subordinated Certificate............................................. 39
Sub-Servicer......................................................... 39
Sub-Servicing Agreement.............................................. 39
Tax Matters Person................................................... 39
Tax Returns.......................................................... 39
Transaction Screen Process........................................... 39
Transfer............................................................. 39
Transferee........................................................... 39
Transferor........................................................... 39
Trust Fund........................................................... 40
Trustee.............................................................. 40
Trustee Fee Rate..................................................... 40
Trustee Liability.................................................... 40
Trustee's Fee........................................................ 40
UCC.................................................................. 40
UCC Financing Statement.............................................. 40
Uncertificated Accrued Interest...................................... 40
Uncertificated Distributable Interest................................ 40
Uncertificated Principal Balance..................................... 41
Underwriter.......................................................... 41
United States Person................................................. 41
Updated Mortgage Loan Schedule....................................... 41
USAP................................................................. 41
Voting Rights........................................................ 41
Weighted Average Effective REMIC I Remittance Rate................... 42
Yield Maintenance Charge............................................. 42
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans................................. 43
SECTION 2.02. Acceptance of REMIC I by Trustee............................. 44
SECTION 2.03. Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Breaches of Representations and
Warranties................................................. 45
SECTION 2.04. Representations and Warranties of Depositor.................. 47
vi
<PAGE>
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests........ 48
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee..................................... 49
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates............................................... 49
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee.................................... 49
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates............................................... 49
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans......................... 50
SECTION 3.02. Collection of Mortgage Loan Payments......................... 51
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts....................... 52
SECTION 3.04. Certificate Account and Distribution Account................. 54
SECTION 3.05. Permitted Withdrawals From the Certificate Account
and the Distribution Account............................... 56
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account and the REO Account................... 60
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage............................ 62
SECTION 3.08. Enforcement of Alienation Clauses............................ 65
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals........................................ 65
SECTION 3.10. Trustee and Custodian to Cooperate; Release
of Mortgage Files.......................................... 68
SECTION 3.11. Servicing Compensation....................................... 70
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.................... 72
SECTION 3.13. Annual Statement as to Compliance............................ 74
SECTION 3.14. Reports by Independent Public Accountants.................... 75
SECTION 3.15. Access to Certain Information................................ 75
SECTION 3.16. Title to REO Property; REO Account........................... 76
SECTION 3.17. Management of REO Property................................... 78
SECTION 3.18. Sale of Mortgage Loans and REO Properties.................... 81
SECTION 3.19. Additional Obligations of Master Servicer.................... 84
SECTION 3.20. Modifications, Waivers, Amendments and Consents.............. 84
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping........................... 86
SECTION 3.22. Sub-Servicing Agreements..................................... 87
SECTION 3.23. Representations and Warranties of Master Servicer
and Special Servicer....................................... 89
SECTION 3.24. Duties of Extension Adviser.................................. 92
vii
<PAGE>
SECTION 3.25. Election of Extension Adviser................................ 93
SECTION 3.26. Limitation on Liability of Extension Adviser................. 96
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions ............................................... 97
SECTION 4.02. Statements to Certificateholders; Collection Reports......... 105
SECTION 4.03. P&I Advances ................................................ 112
SECTION 4.04. Allocation of Appraisal Reduction Amounts and
Realized Losses and Additional Trust Fund Expenses......... 115
SECTION 4.05. Calculations................................................. 116
SECTION 4.06. Use of Agents................................................ 117
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates............................................. 118
SECTION 5.02. Registration of Transfer and Exchange of Certificates........ 118
SECTION 5.03. Book-Entry Certificates...................................... 124
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............ 125
SECTION 5.05. Persons Deemed Owners........................................ 125
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer................................................... 126
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer........................ 126
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer....................................... 127
SECTION 6.04. Resignation of Master Servicer and the Special Servicer...... 127
SECTION 6.05. Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer................... 128
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee..................................... 129
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer....................................... 129
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer...................................... 129
SECTION 6.09. Designation of Special Servicer by the Controlling
Class...................................................... 129
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate................................................ 130
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default............................................ 133
SECTION 7.02. Trustee to Act; Appointment of Successor..................... 136
SECTION 7.03. Notification to Certificateholders........................... 137
viii
<PAGE>
SECTION 7.04. Waiver of Events of Default.................................. 138
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default......... 138
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................ 139
SECTION 8.02. Certain Matters Affecting Trustee............................ 140
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans............................. 141
SECTION 8.04. Trustee May Own Certificates................................. 142
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.................................................... 142
SECTION 8.06. Eligibility Requirements for Trustee......................... 142
SECTION 8.07. Resignation and Removal of Trustee........................... 143
SECTION 8.08. Successor Trustee............................................ 144
SECTION 8.09. Merger or Consolidation of Trustee........................... 145
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................ 145
SECTION 8.11. Appointment of Custodians.................................... 146
SECTION 8.12. Appointment of Authenticating Agents......................... 147
SECTION 8.13. Appointment of Paying Agent.................................. 148
SECTION 8.14. Appointment of REMIC Administrators.......................... 148
SECTION 8.15. Access to Certain Information................................ 149
SECTION 8.16. Representations and Warranties of Trustee.................... 149
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information...................................... 150
ARTICLE IX TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans............................................. 153
SECTION 9.02. Additional Termination Requirements.......................... 158
ARTICLE X ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration........................................ 160
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment................................................... 165
SECTION 11.02. Recordation of Agreement; Counterparts...................... 167
SECTION 11.03. Limitation on Rights of Certificateholders.................. 167
SECTION 11.04. Governing Law............................................... 168
SECTION 11.05. Notices..................................................... 168
SECTION 11.06. Severability of Provisions.................................. 169
SECTION 11.07. Grant of a Security Interest................................ 169
SECTION 11.08. Streit Act.................................................. 169
SECTION 11.09. Successors and Assigns; Beneficiaries....................... 170
ix
<PAGE>
SECTION 11.10. Article and Section Headings................................ 170
SECTION 11.10. Notices to Rating Agencies.................................. 170
SECTION 11.11. Complete Agreement.......................................... 171
x
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
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 IO Certificate A-4 Section 1.01 Definition of "Class IO
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 H Certificate A-11 Section 1.01 Definition of "Class H
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>
xi
<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 to Mortgage C Section 2.02(a)
File Delivery
Form of Master Servicer Request for Release D-1 Section 1.01 Definition of "Request for
Release"; Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request for Release D-2 Section 1.01 Definition of "Request for
Release"; Section 3.10(b)
Calculation of NOI/Debt Service Coverage Ratios E-1 Section 1.01 Definition of "Net
Operating Income"; Section 3.12(b
Form of Updated Mortgage Loan Schedule E-2 Section 3.12(c); and Section 4.02(b)
Copy of Letter of Representations among F Section 4.01(d)
Depositor, Trustee and initial Depository
Form of Certificate from Holder (Transferor) G-1 Section 5.02(b)
of a Certificate to the Certificate Registrar
Form of Certificate from Proposed Transferee G-2 Section 5.02(b)
of a Certificate to Certificate Registrar
Form of Certificate from Proposed Transferee G-3 Section 5.02(b)
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>
xii
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
<S> <C> <C>
Form of Transfer Affidavit and Agreement I-1 Section 5.02(d)(i)(B)
regarding Class R-I Certificates
Form of Transferor Certificate regarding I-2 Section 5.02(d)(i)(D)
Class R-I, R-II and R-III Certificates
Form of Notice and Acknowledgment J-1 Section 6.09
Form of Acknowledgment of Proposed Special J-2 Section 6.09
Servicer
Form of UCC-1 financing statement K Section 11.07
Form of Schedule of Holders of each Class of L Section 4.02(a)
Regular Certificates
Form of Master Servicer/Special Servicer M Section 4.02(b)
Collection Report
</TABLE>
xiii
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of November 1, 1996, among MERRILL LYNCH MORTGAGE INVESTORS, INC.,
as Depositor, FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Master Servicer,
CRIIMI MAE SERVICES LIMITED PARTNERSHIP, as Special Servicer, and STATE STREET
BANK AND TRUST COMPANY, 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 that corresponds to
the Stated Maturity Date of the Mortgage Loan to which such REMIC I Regular
Interest relates.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
II". The Class R-II Certificates will represent the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions under federal income
tax law. The following table 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 interests" in REMIC II
(the "REMIC II Regular Interests"). None of the REMIC II Regular Interests will
be certificated.
<PAGE>
-2-
<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>
R Class A-1 Variable(1) $311,042,000 November 21, 2028(3)
S Class A-2 Variable(1) $130,587,000 November 21, 2028(3)
T Class A-3 Variable(1) $343,805,000 November 21, 2028(3)
U Class B Variable(1) $ 68,299,000 November 21, 2028(3)
V Class C Variable(1) $ 62,607,000 November 21, 2028(3)
W Class D Variable(1) $ 56,915,000 November 21, 2028(3)
X Class E Variable(1) $ 28,458,000 November 21, 2028(3)
------------
Y Classes F, G & H Variable(1) $136,595,859 November 21, 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.
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>
-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 6.69% $311,042,000 November 21, 2028(4)
Class A-2 6.82% $130,587,000 November 21, 2028(4)
Class A-3 6.96% $343,805,000 November 21, 2028(4)
Class B 6.96% $ 68,299,000 November 21, 2028(4)
Class C 6.96% $ 62,607,000 November 21, 2028(4)
Class D 6.96% $ 56,915,000 November 21, 2028(4)
Class E 6.96% $ 28,458,000 November 21, 2028(4)
------------
Class IO (2) (2) November 21, 2028(4)
Class F 6.96% $ 62,607,000 November 21, 2028(4)
Class G 6.96% $ 39,841,000 November 21, 2028(4)
Class H 6.96% $ 34,147,859 November 21, 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 not be entitled to receive distributions of principal, but will be
entitled to receive payments of interest in an amount equal to the sum of
the interest accrued on the Component Notional Amount of each of 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 two years after the 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.
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 $1,138,308,859.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer and the Trustee agree as follows:
<PAGE>
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates (other than the Class IO Certificates) for any Distribution Date,
one month's interest at the Pass-Through Rate applicable to such Class of
Certificates, 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 the Class IO Certificates and
each Component thereof 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 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 Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Special Servicer pursuant to Section 3.11(c).
"Additional Servicing Fee Rate": With respect to any Distribution Date,
0.04% per annum.
"Additional Trust Fund Expense": Any Principal Recovery Fees and, in
accordance with Sections 3.03(d) and 4.03(d), interest payable to the Master
Servicer and the Special Servicer on Advances, 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
<PAGE>
-5-
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.
"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 (without duplication), (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 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 (net of any
amounts escrowed therefor) 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.
"Appraised Value": With respect to each Mortgaged Property, the appraised
value thereof based upon the most recent appraisal or update thereof that is
contained in the related Servicing File.
"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.
<PAGE>
-6-
"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 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 and the amounts
collected by or on behalf of the Master Servicer as of the close of business on
such Determination Date and required to be deposited in the Certificate Account,
(ii) the aggregate amount of any P&I Advances made by the Master Servicer for
distribution on the Certificates on such Distribution Date pursuant to Section
4.03, (iii) the aggregate amount transferred from the REO Account (if
established) to the Certificate Account during the month of such Distribution
Date, on or prior to the P&I Advance Date in such month, pursuant to Section
3.16(c), 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.
<PAGE>
-7-
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Scheduled Payment payable on the Stated Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York or in each of the cities in which the
Corporate Trust Office of the Trustee or the Master Servicer 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-C2, 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 "First Union
National Bank of North Carolina, as Master Servicer for State Street Bank and
Trust Company, as Trustee, on behalf of and in trust for the registered holders
of Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1996-C2".
"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 current Class Principal Balance of such Class of Regular
Certificates, as the case may be, and the denominator of which is the related
Original Class Principal Balance.
"Certificate Notional Amount": The sum of the Component Notional Amounts
with respect to Component IO-1, Component IO-2a and Component I0-2b,
respectively.
<PAGE>
-8-
"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 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 amendments
referred to in 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.
<PAGE>
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"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 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 H Certificate": Any of the Certificates with a "Class H" 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 IO Certificate": Any one of the Certificates with a "Class IO"
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.
"Class Prepayment Percentage": With respect to any Distribution Date and
any 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 H Certificates, the percentage obtained by dividing
the portion, if any, of the Principal Distribution Amount distributed to the
respective Class of Certificates on such
<PAGE>
-10-
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 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": November 25, 1996.
"Code": The Internal Revenue Code of 1986.
"Collection Period": With respect to any Distribution Date, the period
commencing on the day immediately following the Determination Date for the
preceding Distribution Date (or, in the case of the initial Distribution Date,
commencing immediately following the Cut-off Date) and ending on and including
the related Determination Date.
"Collection Report": The monthly report, part of which is to be prepared by
the Master Servicer and part of which is to be prepared by the Special Servicer,
to be delivered to the Trustee 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 Stated Principal
Balance of the Mortgage Loans.
<PAGE>
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"Component IO-2a": One of three components of the Class IO Certificates
having a Component Notional Amount equal to the then current Class Principal
Balance of the Class A-1 Certificates as of any date of determination.
"Component IO-2b": One of three components of the Class IO Certificates
having a Component Notional Amount equal to the then current Class Principal
Balance of the Class A-2 Certificates as of any date of determination.
"Component": Each of Component IO-1, Component IO-2a and Component IO-2b,
and collectively, the "Components".
"Component Notional Amount": The notional principal amount on which any of
Component IO-1, Component IO-2a or Component IO-2b 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 25% of the Original Class
Principal Balance thereof; provided, however, that if no such Class of
Certificates has a Class Principal Balance greater than 25% 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 Class designation. With respect to determining the Controlling
Class, the Class A-1, Class A-2 and Class A-3 Certificates shall be deemed a
single Class of Certificates.
"Controlling Class Representative": As defined in Section 6.09.
"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 225 Franklin Street, 5th Floor,
Boston, Massachusetts 02110.
"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. If no such
custodian has been appointed or if such custodian has been so appointed, but the
Trustee shall have terminated such appointment, then the Trustee shall be the
Custodian.
"Cut-off Date": November 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
<PAGE>
-12-
unscheduled payments of principal received on or before such date and the
principal component of all Scheduled Payments due on or before such date,
whether or not received.
"DCR": Duff Phelps Credit Rating Co. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "DCR" 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 Duff & Phelps Credit Rating Co. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as of any
date of determination, the ratio of (x) the annualized Net Operating Income
(before payment of any debt service on such Mortgage Loan) generated by the
related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited) have been received by or on behalf of the
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.
<PAGE>
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"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, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Disqualified Organization": Any of the following: (i) the United States or
a possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of 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 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.
<PAGE>
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"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 "State Street Bank and Trust Company, as
Trustee, in trust for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1996-C2."
"Distribution Date": The 21st day of any month, or if such 21st day is not
a Business Day, the Business Day immediately following, commencing in December,
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 30 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), "AA-" by Standard &
Poor's, and "A" by DCR (if then rated by DCR) or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates, as evidenced in writing by the Rating Agencies, at any time
such funds are on deposit therein, or with respect to deposits held for less
than 30 days in such account the (b) short-term deposits of which (or of such
institution's parent holding company) are rated F-1+, D-1+ and A-1 by Fitch (if
then rated by Fitch), DCR (if then rated by DCR) and Standard & Poor's,
respectively, 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 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.
"Environmental Assessment": A "Phase I assessment" as described in, and
meeting the criteria of, (a) (i) Chapter 5 of the FNMA Multifamily Guide or any
successor
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provisions covering the same subject matter, in the case of Specially
Serviced Mortgage Loans as to which the related Mortgaged Property is
multi-family property, or (ii) the Servicing Standards, in the case of any other
Specially Serviced Mortgage Loans, and (b) the American Society for Testing and
Materials.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, 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": State Street Bank and Trust Company, or after its
resignation or removal to its successor selected pursuant to Section 3.25(a).
"Extension Adviser Fee": As defined in Section 3.25(h).
"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 Capital": 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.
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"FNMA": Federal National Mortgage Association or any successor.
"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
and urea formaldehyde.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of Housing
and Urban Development pursuant to Section 207 of the National Housing Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the 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
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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.
"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, other than Penalty Interest, 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
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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
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;
provided, however, that if there is no Holder of Certificates entitled to
greater than 50% of the Voting Rights of such Class, the single Holder of
Certificates with the largest percentage of Voting Rights allocated to such
Class. With respect to determining the Majority Subordinate Certificateholder,
the Class A-1, Class A-2 and Class A-3 Certificates shall be deemed to be a
single Class of Certificates, with such Voting Rights allocated among the
Holders of Certificates of such Classes in proportion to the respective
Certificate Principal Balances of such Certificates as of such date of
determination.
"Master Servicer": First Union National Bank of North Carolina, its
successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicer Strip": The right of First Union National Bank of North
Carolina or its successors and assigns as Master Servicer hereunder 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.
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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, 0.125%
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).
"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
State Street Bank and Trust Company, as trustee for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2;
(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
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any other recorded document relating to the Mortgage Loan otherwise
included in the Mortgage File, in favor of State Street Bank and
Trust Company, as trustee for the registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1996-C2, in recordable form;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan, in favor of State Street Bank and Trust Company, as
trustee for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1996-C2;
(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) any filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any assignee
prior to the Trustee (but only to the extent the Mortgage Loan
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement
in favor of the Mortgage Loan Seller on record with the applicable
public office for UCC Financing Statements, an original UCC-2 or
UCC-3 assignment, as appropriate, in favor of State Street Bank and
Trust Company, as trustee for the registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1996-C2;
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.
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"Mortgage Loan Purchase Agreements": Those certain Mortgage Loan Purchase
Agreements, each dated as of November 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;
(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;
(x) the Additional Servicing Fee Rate; and
(xi) 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.
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"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, 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, the Master Servicer Strip Rate, if any, and the Additional Servicing Fee
Rate; provided that if the related Mortgage Rate has been modified in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, the Net Mortgage Rate for such Mortgage Loan or REO
Loan shall be calculated without regard to such event.
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"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 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 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 F, Class G, Class H, Class R-I, Class R-II or Class
R-III Certificate.
"Non-United States Person": Any person other than a United States Person.
"Officers' Certificate": A certificate signed by a Servicing Officer of the
Master Servicer or the Special Servicer, as the case may be.
"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
$1,138,308,895, with respect to Component IO-1, $311,042,000 with respect to
Component IO-2a, and $130,587,000 with respect to Component IO-2b.
"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.
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"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, 6.69%;
(ii) the Class A-2 Certificates for any Distribution Date, 6.82%;
(iii) the Class A-3 Certificates for any Distribution Date, 6.96%;
(iv) the Class B Certificates for any Distribution Date, 6.96%;
(v) the Class C Certificates for any Distribution Date, 6.96%;
(vi) the Class D Certificates for any Distribution Date, 6.96%;
(vii) the Class E Certificates for any Distribution Date, 6.96%;
(viii) the Class F Certificates for any Distribution Date, 6.96%;
(ix) the Class G Certificates for any Distribution Date, 6.96%;
(x) the Class H Certificates for any Distribution Date, 6.96%;
(xi) Component IO-1 for any Distribution Date, the REMIC II Remittance
Rate for such Distribution Date minus 6.96%;
(xii) Component IO-2a for any Distribution Date, .27%; and
(xiii) Component IO-2b for any Distribution Date, .14%.
"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 Stated 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 Amount of such Certificate as of the
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Closing Date, as specified on the face thereof, and the denominator of
which is the Original Class Principal Balance or original Certificate 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 (including obligations or securities of the Trustee if otherwise
qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a
predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. If rated, such an obligation should not have
an "r" highlighter affixed to its rating by Standard & Poor's.
Interest may either 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, DCR and
Standard & Poor's or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, any such item should not have an "r"
highlighter affixed to its rating by Standard & Poor's, and its
terms should have a predetermined fixed dollar amount of principal
due at maturity that cannot 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, DCR and Standard & Poor's or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing by the
Rating Agencies. In addition, any such item should not have an "r"
highlighter affixed to its rating by Standard & Poor's, and its
terms should have a predetermined fixed
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dollar amount of principal due at maturity that cannot very or
change. Interest may either be fixed or variable, and should be tied
to a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index. Such investments should
not be 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, DCR and Standard &
Poor's or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. The
commercial paper should not have an "r" highlighter affixed to its
rating by Standard & Poor's and by its terms should have a
predetermined fixed dollar amount of principal due at maturity that
cannot 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
Fitch, if rated by Fitch, and DCR and AAAm or AAAm-G by Standard &
Poor's (or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies) and
which 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
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.
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"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 Business Day immediately 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 related Trustee Fee, Master Servicing Fee and Additional Servicing
Fee) 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, that would have accrued
at a rate per annum equal to the Net Mortgage Rate for such Mortgage Loan on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any 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
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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
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 (including any Balloon Payment), net of any portion of
such payment that represents a recovery of the principal portion of any
Scheduled Payment (other than a Balloon Payment) due, or the principal
portion of any Assumed Scheduled Payment deemed due, in respect of such
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered and any amounts to be distributed as
interest on any Class of Certificate in respect of a recovery of an
Appraisal Reduction Amount;
(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 as
recoveries of principal of such Mortgage Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion
of any Scheduled Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Scheduled Payment deemed due, in respect
of the related Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(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
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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 immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Certificates on such immediately
preceding Distribution Date pursuant to Section 4.01; 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 MortgageLoan 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 November 20, 1996, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The prospectus supplement dated November 20, 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 9.01 or to be otherwise
sold pursuant to Section 3.18(d), a cash price equal to the outstanding Stated
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.
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"Rating Agency": Each of Fitch, DCR 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 B,
Class C, Class D, Class E or Class IO Certificate.
"Regular Certificate": Any REMIC III Certificate other than a Class R-III
Certificate.
"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
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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 Remittance Rate": With respect to any REMIC I Regular 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.
"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 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
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 B,
Class C, Class D, Class E, Class F, Class G, Class H, Class IO or Class R-III
Certificate.
"REMIC Administrator": The Trustee or any REMIC administrator appointed
pursuant to Section 8.14.
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"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final Treasury regulations and any published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and maintained by
the Special Servicer pursuant to Section 3.16 on behalf of the Trustee in trust
for the Certificateholders, which shall be entitled "CRIIMI MAE Services Limited
Partnership, as Special Servicer, in trust for registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1996-C2".
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Scheduled
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan). Each REO Loan shall be deemedto 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
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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, prepared in accordance with 12 CFR ss.225.62 and
conducted in accordance with the standards of the Appraisal Institute of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer.
"Required Appraisal Mortgage Loan": Each Mortgage Loan that (i) is sixty
(60) 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 (other than a Balloon Payment).
"Required Appraisal Loan Value": As defined in Section 4.04(c).
"Required Appraisal Value": An amount equal to 90% of the Appraised Value
(net of any prior liens and estimated liquidation expenses) 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).
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"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, Class A-3 or Class IO
Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by the Master Servicer or Special Servicer
in connection with the servicing of a Mortgage Loan, 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, if any, 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 or the Special 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
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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, the Special Servicing Fee and the Additional 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: (A) (i)
with the same care, skill and diligence with which prudent institutional
commercial mortgage lenders and loan servicers service similar mortgage loans or
(ii) in the same manner in which the Master Servicer or Special Servicer, as the
case may be, administers similar mortgage loans for its own account, whichever
is higher, and (B) with a view to (i) 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), without regard to any obligation to cure a breach of any
representation or warranty under this Agreement or to repurchase any Mortgage
Loan to cure a breach of any such representation or warranty and notwithstanding
any conflict of interest which may arise with respect 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) any obligation of the Master Servicer and the
Special Servicer to make Advances; (iv) the adequacy of or the right to receive
its or its affiliates' compensation for its services or reimbursement of costs
under this Agreement or with respect to any particular transaction; and (v) its
ownership, servicing or management for others of any other mortgage loans or
properties.
"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".
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"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Servicer": CRIIMI MAE Services Limited Partnership, 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 45 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 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 30 days); or
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(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 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, but, with respect to any
bankruptcy or insolvency proceedings described in clauses (d), (e) and
(f), no later than the entry of an order or decree dismissing such
proceeding;
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(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 The
McGraw-Hill Companies, 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).
"State and Local Taxes": Taxes imposed by the states of New York,
Massachusetts, Delaware, Maryland and North Carolina and by any other state or
local taxing authorities as may, by notice to the Trustee, assert jurisdiction
over the trust fund or any portion thereof, or which, according to an Opinion of
Counsel addressed to the Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
specified in the Mortgage Note (as in effect on the Closing Date) on which the
last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Loan), 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 (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
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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. 23 set forth on the Mortgage
Loan Schedule.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E, Class
F, Class G, Class H, 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 and 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.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
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"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II and
REMIC III.
"Trustee": State Street Bank and Trust Company, its successor in interest,
or any successor trustee appointed as herein provided.
"Trustee Fee Rate": 0.005% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"Trustee's Fee": The fee designated as such and payable to the Trustee
pursuant to Section 8.05.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest 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, 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 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 for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date, reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is the
Uncertificated Accrued Interest in
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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 shall equal the Cut-off Date Balance of the
related 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 Capital.
"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 Special 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.
"USAP": The Uniform Single Audit Program for Mortgage Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificates in proportion to the respective
Class Principal Balances of their Certificates. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. 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
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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 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 and the Special Servicer),
on or before the Closing Date, the Mortgage File for each Mortgage Loan so
assigned. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by 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 Trustee 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 Trustee shall direct the appropriate Mortgage Loan Seller pursuant
to the applicable Mortgage Loan Purchase Agreement promptly to prepare or cause
to be
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prepared a substitute therefor or cure such defect, as the case may be,
and thereafter the Trustee shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate.
(d) All documents and records in the possession of the Depositor or
the Mortgage Loan Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer or such other Person as may be
directed by 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; provided, however, the Master Servicer shall have no
responsibility for holding documents created or maintained by the Special
Servicer hereunder and not required to be delivered to the Master Servicer.
(e) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Special Servicer on or before the Closing Date a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date.
SECTION 2.02. Acceptance of REMIC I by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of its right, title and
interest in the Mortgage Loans and other assets constituting REMIC I, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
proviso in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further review provided for in Section 2.02(b), of (i) the
Mortgage File delivered to it for each Mortgage Loan and (ii) a copy of a fully
executed counterpart of each Mortgage Loan Purchase Agreement, all in good faith
and without notice of any adverse claim, and declares that it or a Custodian on
its behalf holds and will hold such documents and the other documents received
by it that constitute portions of the Mortgage Files, and that it holds and will
hold the Mortgage Loans and other assets included in REMIC I, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer and the Mortgage Loan Sellers, that except as identified in a
written notice, a copy of which shall have been delivered by the Custodian on or
prior to the Closing Date to each of the Depositor, the Master Servicer and the
Mortgage Loan Sellers, without regard to the proviso in the definition of
"Mortgage File"; each of the documents specified in clause (i) of the definition
of Mortgage File are in its possession. In addition, within fifteen (15)
Business Days after the Closing, the Trustee or the Custodian on its behalf will
review the Mortgage Files and certify to each of the Depositor, the Master
Servicer, the Special Servicer and the Mortgage Loan Sellers that, except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
in substantially the form annexed hereto as Exhibit C, (i) without regard to the
proviso in the definition of "Mortgage File", all documents specified in clauses
(i) through (v) and (vii), and to the extent provided in the 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
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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.
(b) Within 90 days after the Closing Date, the Custodian shall
certify in writing to each of the Depositor, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder 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 Section2.02(b) and only as to the foregoing
documents, the information set forth in the MortgageLoan 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 (including through such written
notice provided by any party hereto, as provided above), 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,
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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 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.
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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.
(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.
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(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 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 and all
servicing rights pertaining thereto.
(ix) The Depositor is transferring the Mortgage Loans to the
Trust Fund free and clear of any liens, pledges, charges and
security interests.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties.
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,
(a) the Trustee agrees to hold a portion of each of the Mortgage Loans included
in REMIC I with a remittance rate, initial uncertificated stated principal
amount and a latest possible maturity date as set forth in the fourth sentence
of the second paragraph of the Preliminary Statement as a REMIC I Regular
Interest in uncertificated form on behalf of the Depositor subject to its
concurrent assignment as set forth in Section 2.06, and (b) the Certificate
Registrar, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, and the Authenticating Agent has
authenticated and delivered to or upon the order of the Depositor, the Class R-I
Certificates in authorized denominations. The interests evidenced by the Class
R-I Certificates, together with the REMIC I Regular Interests, constitute the
entire beneficial ownership of REMIC I. The rights of the Class R-I
Certificateholders and REMIC II (as holder of the REMIC I Regular Interests) to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, and all ownership
interests evidenced or constituted by the Class R-I Certificates and the REMIC I
Regular Interests, shall be as set forth in this Agreement.
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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 right, title
and interest of the Depositor in the REMIC I Regular Interests and declares that
it holds and will hold the same in trust for the 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, as the Certificate
Registrar, authenticated, as the Authenticating Agent, and delivered to or upon
the order of the Depositor, the Class R-II Certificates in authorized
denominations.
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests 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 Trustee, as 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.
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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
and shall render such services with respect to all 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.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer, subject to Section 6.11 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, promptly 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.
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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 required 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, with regard to a Specially
Serviced Mortgage Loan, or the Master Servicer, with regard to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan, may waive any Penalty Interest
or late payment charge in connection with any payment on a Mortgage Loan.
(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, 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
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receive payments from the Certificate Account as set forth in clauses (ii)
through (xv) of Section 3.05(a) from amounts so applied.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, 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; (v) pay itself interest and investment
income on balances in the Servicing Account as described in Section 3.06(b), if
and to the extent not required by law or the terms of Mortgage Loan to be paid
to the Mortgagor; or (vi) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. To the extent
permitted by law or the applicable Mortgage Loan, funds in the Servicing
Accounts may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall 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 shall deposit in a Servicing Account any
amount 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. The Servicing Accounts shall not be considered part of the
segregated pool of assets constituting REMIC I.
(b) The Master Servicer shall, as to all Mortgage Loans, (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 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, the Master Servicer shall, as to all Mortgage Loans, 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) The Master Servicer shall, as to all Mortgage Loans, make a
Servicing Advance with respect to the related Mortgaged Property in an amount
equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments
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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 Servicing Advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing 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 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 Stated 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 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, compounded annually, 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.
(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; which appraisal shall take into account the factors specified in Section
3.18(e), including without limitation, any environmental, engineering or other
third party reports available, and other factors that a prudent real estate
appraiser would consider and conducted in accordance with the standards of the
Appraisal Institute performed pursuant to Section 3.09(a) by the Master Servicer
or by the Special Servicer if the Mortgage 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) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all
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Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made (i) to pay for, or to reimburse the related Mortgagor
in connection with, the related repairs and/or capital improvements at the
related Mortgaged Property 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 and (ii) to pay the
Master Servicer interest and investment income earned on amounts in the Reserve
Accounts as described below. To the extent permitted in the applicable Mortgage,
funds in the Reserve Accounts may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. All Reserve Accounts shall be
Eligible Accounts. The Reserve Accounts shall not be considered part of the
segregated pool of assets comprising REMIC I.
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;
(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;
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(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 and the Special Servicer are entitled to retain as additional servicing
compensation pursuant to Sections 3.11(b) and (d), 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 Sections 3.11(b) and (d) assumption fees, late charges and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to either of such Sections 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 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
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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) the Purchase Price 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 amounts 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 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):
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(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 earned and unpaid Additional Servicing Fees in respect of all
Mortgage Loans;
(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 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
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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), 3.18(e) or 4.03(c);
(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 and tax
accountants 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
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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 (in no particular
order of priority):
(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, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable
to it pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by
the Master Servicer in the Distribution Account not required to be
deposited therein;
(viii) to pay any amounts payable to the Extension Adviser
pursuant to Section 3.25; 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 Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account or 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
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3.06, an "Investment Account"), to invest, or if it 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. In the event that the Master Servicer shall
have failed to give investment directions for any Servicing Account, any Reserve
Account, the Certificate Account or Distribution Account or the Special Servicer
shall have failed to give investment directions for the REO Account by 11:00
A.M. New York time on any Business Day on which there may be uninvested cash,
such funds shall be invested in securities described in clause (i) of the
definition of the term "Permitted Investments." All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Master Servicer (with respect to Permitted Investments of amounts
in the Servicing Accounts, the Reserve Accounts, 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 any of the Servicing Accounts, the Reserve Accounts, 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 3.03(a), 3.03(f) or 3.05(a) or withdrawal by the Paying Agent at its
direction in accordance with Sections 3.05(b), as applicable. Whether or not the
Special
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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 Servicing Accounts, the Reserve Accounts,
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 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 each exercise its reasonable best
efforts to 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 exercise its reasonable best efforts 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 Certificateholder 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 claims paying ability rating of at
least "A," "A" and "A" from Standard & Poor's, DCR (if then rated by DCR) and
Fitch (if
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then rated by Fitch), respectively (or solely Standard & Poor's, if such insurer
is not rated by DCR or Fitch) 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. 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 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," "A" and
"A" or better from Standard & Poor's, DCR and Fitch, respectively (or solely
Standard & Poor's, if such insurer is not rated by DCR and Fitch) or such lower
rating of any Rating Agency or rating from any nationally recognized statistical
rating agency as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies, and (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
and/or REO Properties. Such blanket 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.
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(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 are part of the Trust Fund) keep in
force with Qualified Insurers a fidelity bond issued by an insurer having a
claims-paying rating of "A," "A" and "A" or better from Standard & Poor's, DCR
(if then rated by DCR) and Fitch (if then rated by Fitch), respectively or such
lower rating of any Rating Agency or rating from a nationally recognized
statistical rating agency 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, 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); and provided
that the Master Servicer's current fidelity insurer, Aetna Casualty and Surety
Company, shall be deemed to satisfy the requirements of this section so long as
it has a claims-paying rating of "A" or better from Standard & Poor's. 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 for ten days' written notice to the
Trustee prior to any cancellation.
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,"
"A" and "A" or better from Standard & Poor's, DCR (if then rated by DCR) and
Fitch (if then rated by Fitch), 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, 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, or 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 any 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 for ten days' written notice to the Trustee prior to cancellation.
Notwithstanding the foregoing, the Master Servicer's current errors and
omissions insurer, Lloyd's of London, shall be deemed (only with respect to the
first 70 days following the Closing Date) to satisfy the requirements of this
Section and, within 70 days following the Closing Date, the Master Servicer
shall procure an errors and omission insurance policy with a Qualified
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Insurer satisfying the ratings requirements of this Section 3.07(c); provided,
however, that the Master Servicer shall not be required to procure an error and
omissions policy with a Qualified Insurer satisfying the ratings requirements of
this Section 3.07(c), if prior to the expiration of such 70 day period, Standard
& Poor's confirms in writing to the Trustee that Lloyd's of London is deemed to
satisfy the requirements of this Section 3.07(c). The Master Servicer and the
Special Servicer shall each cause the Trustee to be an additional loss payee on
any policy currently in place or procured pursuant to the requirements of this
Section 3.07(c).
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 "A" or better by all of the Rating Agencies (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),
such Person may self-insure with respect to the risks described in this
subsection.
SECTION 3.08. Enforcement of Alienation Clauses.
With respect to all Mortgage Loans, the Special Servicer, on behalf
of the Trustee as the mortgagee of record, shall, to the extent permitted by
applicable law, 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 Special Servicer has
determined, consistent with the Servicing Standard, that waiver of such
restrictions would be in accordance with the Servicing Standard. Promptly after
the Special Servicer has made any such determination, the Special Servicer shall
deliver to the Trustee, the Rating Agencies and the Master Servicer an Officers'
Certificate setting forth the basis for such determination. The Special Servicer
shall not exercise any such waiver in respect of a due-on-encumbrance provision
without receiving the prior written confirmation from the Rating Agencies that
such action would not result in a downgrading or withdrawal of the ratings then
assigned to the Certificates.
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 advance 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 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
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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; which appraisal shall take into account the factors
specified in Section 3.18(e), including without limitation, any environmental,
engineering or other third party reports available, and other factors that a
prudent real estate appraiser would consider. With respect to each Required
Appraisal Mortgage Loan, the Special 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. The Special Servicer shall advance the cost of such
Required Appraisal; provided, however, that such expense will be subject to
reimbursement to the Special Servicer as a Servicing Advance out of 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 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 (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:
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(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.
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 in
making such determination. The cost of any such Phase I Environmental
Assessment, 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 a Servicing Advance; and if any such Phase I Environmental Assessment
so warrants, the Special Servicer shall, as a Servicing Advance, 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 and the
bases for such intention, (ii) the Trustee shall have notified the
Certificateholders in writing of
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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 each year deliver to the Trustee and the Master Servicer an
Officers' Certificate stating that such reports have been filed. Such reports
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 and the related Sub-Servicer 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 Trustee, who shall release or
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cause the related Custodian to release, 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 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
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO 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
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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)(iii). 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 (i) 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 Mortgagor with respect to a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, and (ii) fifty percent (50%) of any
assumption fee to the extent actually paid by a Mortgagor with respect to any
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 Reserve Accounts, the
Servicing Accounts, 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
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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 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.
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As compensation for its activities set forth in Section 3.12, the
Special Servicer shall be entitled to receive the Additional Servicing Fee with
respect to each Mortgage Loan and REO Loan. As to each such Mortgage Loan and
REO Loan, the Additional Servicing Fee shall accrue at the Additional 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 Additional 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 Additional 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 Special
Servicer shall be entitled to recover unpaid Additional 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)(iv).
The Special Servicer's right to receive the Special Servicing Fee,
the Additional 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 (i) late
charges received on or with respect to Specially Serviced Mortgage Loans, (ii)
fifty percent (50%) of assumption fees collected on all Mortgage Loans and (iii)
one hundred percent (100%) of modification fees collected on all Mortgage Loans,
in each case to the extent actually paid by the related Mortgagor, shall be
retained by the Special Servicer or 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 or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after a related Mortgage Loan becomes a Specially Serviced Mortgage Loan and
shall at its expense perform
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an inspection of all other Mortgaged Properties at least once per calendar year.
The Special Servicer shall prepare a written report of each such inspection
performed by it that sets forth in detail the condition of the Mortgaged
Property and that specifies the existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which the Special Servicer 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 Special Servicer shall make copies of such inspection
report available for review by Certificateholders during normal business hours
at the offices of the Special Servicer within 30 days of the related inspection.
The Special Servicer shall forward copies of any such inspection reports to the
Master Servicer upon request.
The Special Servicer will, promptly after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, give written notice to the Master Servicer and
the Trustee which will include an explanation as to the reasons such Mortgage
Loan became a Specially Serviced Mortgage Loan and the Special Servicer's plan
for servicing such Mortgage Loan, a copy of which notice will be provided by the
Trustee to each Certificateholder, each Rating Agency, the Depositor and the
Underwriter.
(b) The Special Servicer in the case of all Mortgage Loans, shall
make reasonable efforts to collect promptly from each related Mortgagor annual,
quarterly and monthly 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 make copies of all of the foregoing
items so collected thereby available for review by Certificateholders during
normal business hours at the offices of the Special Servicer and deliver a copy
of same to the Rating Agencies. Upon request, the Special Servicer shall forward
copies of any of the foregoing items so collected thereby to the Master
Servicer, the Majority Subordinate Certificateholder or any holder of the Class
F, Class G or Class H Certificates. 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 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
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
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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 Special Servicer pursuant to Section 3.12(c) shall
reflect the most recent calculations made by the 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 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 2:00 P.M. on the fourth Business Day following
each Determination Date, the Special Servicer shall deliver to the Master
Servicer, the Trustee and the Rating Agencies (for receipt by the Master
Servicer, the Trustee and the Rating Agencies not later than such fourth
Business Day following each Determination Date), by electronic transmission (or
in such other form to which the Trustee, the Master Servicer, the Special
Servicer and the Rating Agencies 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.
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, 1998, 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
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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, 1998 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 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 the
servicing operations of the Master Servicer or the Special Servicer, as the case
may be, for the previous calendar year (except that the first such report shall
cover the period from the Closing Date through December 31, 1997) and that, on
the basis of such examination, conducted substantially in compliance with USAP,
such firm confirms that the Master Servicer or the Special Servicer, as the case
may be, complied with the minimum servicing standards identified in USAP, in all
material respects, except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP 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.
Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (c), (d) and (h) below) and the
Special Servicer (with respect to the items in clauses (e), (f), (g) and (h)
below) shall make available at their respective offices primarily responsible
for administration of the Mortgage Loans, during normal business hours, for
review by any Certificateholder or any person identified to the Master Servicer
or the Special Servicer, as the case may be, as a prospective transferee of such
an interest, the Trustee, the Rating Agencies and the Depositor originals or
copies of the following items: (a) this Agreement and any amendments thereto,
(b) all Distribution Date Statements delivered to holders of the relevant Class
of Certificates since the Closing Date, (c) all Officer's Certificates delivered
by the Master Servicer since the Closing Date, (d) all accountants' reports
delivered to the Master Servicer since the Closing Date as described in Section
3.14, (e) the most recent property inspection report prepared by or on behalf of
the Special Servicer in respect of each Mortgaged Property and delivered to the
Master Servicer, (f) the most recent Mortgaged Property annual operating
statements and rent roll, if any, collected by or on behalf of the Special
Servicer and delivered to the Master Servicer, (g) any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Special Servicer, (h) any and all Officers' Certificates and other evidence
delivered by the Master Servicer or the Special Servicer, as the case may be, to
support its determination that any Advance was or, if made, would be a
Nonrecoverable Advance, and (i) any operating statements, budgets, rent rolls or
financial statements as described in Section 3.12(b). Copies
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of any and all of the foregoing items will be available from the Master Servicer
or the Special Servicer, as the case may be, upon request and shall be provided
to any of the Rating Agencies at no cost pursuant to any of their requests.
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 the servicing thereof within its control, except to the extent it is
prohibited from doing so by applicable law or contract or to the extent such
information is subject to a privilege under applicable law to be asserted on
behalf of the Certificateholders. Such access shall be afforded only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it.
The Master Servicer and the Special Servicer may require payment
from the Certificateholder of a sum sufficient to cover the reasonable costs and
expenses of providing any such information or access pursuant to this Section
3.15 to, or at the request of, the Certificateholders or prospective
transferees, including, without limitation, copy charges and reasonable fees for
employee time and for space.
A Certificateholder may obtain the information contained in each
Distribution Date Statement by sending a written request, together with any fee
that State Street Bank and Trust Company may require, to State Street Bank and
Trust Company, Corporate Trust Department, 225 Franklin Street, Boston,
Massachusetts 02110, Attention: MLMI 1996-C2. Factor information may be obtained
by potential purchasers of the Offered Certificates, by calling (617) 664-5500.
In addition, if the Depositor so directs the Trustee and on terms agreeable to
the Trustee, the Trustee will make available certain Mortgage Loan information
contained in the Distribution Date Statement via automated medium to any Person
who places a telephone call to (617) 664-5600 and requests access to Street Fax,
the Trustee's automated fax back system. The Trustee may disclaim responsibility
for any information therein for which it is not the original source.
Upon written request of any Certificateholder of record made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar will furnish such
Certificateholder with a list of the other Certificateholders then of record.
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
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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 any 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 extended period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its obtaining 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 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 or such other Person
as may be directed by 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
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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
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO
Tax. 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
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mortgaged property comparable to the respective Mortgaged Property.
Both the Special Servicer and the REMIC Administrator may, at the
expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii)
consult with counsel and/or tax accountants with respect to the
federal tax reporting position as to the various sources of income,
the estimated amount of taxes required to be paid as to each such
source of income and the 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 and will 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 Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event. 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;
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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;
(iii) except as 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.
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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 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 Special 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
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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 or subsequently, the highest, provided that the Special
Servicer is not obligated to the first bidder) 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 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. (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 Master Servicer shall not bid with respect to a Defaulted Mortgage
Loan or REO Property if the Special Servicer has informed it that the Special
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
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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 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, without recourse to the Trustee or the Trust
Fund and without representations and warranties, 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).
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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 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 Special
Servicer may, on behalf of the Trustee, agree to any modification, waiver or
amendment of any term of any Mortgage Loan without the consent of the Trustee or
any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan
shall be in writing and shall be considered and effected in accordance with the
Servicing Standard.
(c) The 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 that is not a Specially Serviced 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 Special Servicer at the
expense of the related Mortgagor and upon which the Special Servicer
may conclusively rely) of the property to be released; or
(iv) in the judgment of the Special Servicer, otherwise
materially impair the security for such Mortgage Loan or reduce the
likelihood of timely payment of amounts due thereon.
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(d) The Special Servicer shall not 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, 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 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.
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 in accordance with the Standards of the
Appraisal Institute 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 immediately preceding paragraph. In no event shall the scheduled due date
for a Balloon Payment be extended for a period in excess of 12 months per
extension or 36 months in the aggregate, without the consent of the Extension
Adviser pursuant to Section 3.24 herein.
The determination of the Special Servicer contemplated by clause
(i)(B) of the first paragraph of this Section 3.20(d) shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the Master
Servicer and describing in reasonable detail the basis for the Special
Servicer's determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such modification, waiver or
amendment so permit. The foregoing shall in no way limit the Special Servicer's
ability to charge and collect from the Mortgagor such costs together with
interest thereon.
(f) The 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)
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any related costs and expenses incurred by it. In no event shall the Special
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related 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. Copies of each agreement whereby
any such modification, waiver or amendment of any term of any Mortgage Loan is
effected shall be made available for review upon prior request during normal
business hours at the offices of the Special Servicer pursuant to Section
3.15(g) hereof.
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 a copy of 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 either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, 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;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, the Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
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 and all other information, documents and
records that were not part of the Servicing File when it was delivered to the
Special Servicer within five Business Days of the occurrence, to the Master
Servicer (or such other Person as may be directed by the Master Servicer) and
upon giving such notice, and returning such Servicing File, to the Master
Servicer (or such other Person as may be directed by 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.
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(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 (or such other Person as may be directed by the
Master Servicer) a statement in writing and in computer readable format (the
form of such statement to be agreed upon by the Master Servicer) 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 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
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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 be subject to Section 3.21 hereof with respect
to any Mortgage Loan that becomes a Specially Serviced Mortgage Loan. The Master
Servicer and the Special Servicer each shall deliver to 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
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Agreement, the Master Servicer and the Special Servicer may 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. Any
termination fee payable to any Sub-Servicer pursuant to any Sub-Servicing
Agreement shall not be the obligation of either the Trustee or the Trust Fund.
In any event, if a Sub-Servicing 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 national banking association,
duly organized and in good standing under the laws of the United
States of America, 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 association or by-laws or constitute a
default (or an event which, with notice or
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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 receivership, 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 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, calculated on a
consolidated basis.
(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
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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 Maryland limited partnership,
validly existing and in good standing under the laws of the State of
Maryland, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, will not violate the
Special Servicer's 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.
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(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special 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 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 for more than 12 months per extension or 36
months in the aggregate, unless the Extension Adviser shall have approved such
extension in writing within ten days (or 20 days if such period shall be
extended in accordance with the following paragraph) after receiving from the
Special Servicer written notice thereof and sufficient information to make an
informed decision. The initial Extension Adviser on behalf of the Holders shall
approve of such extension if it determines that the decision of the Special
Servicer to extend such Mortgage Loan is consistent with the Servicing Standard.
Any subsequent Extension Advisor shall approve such extensions if it determines
that the decision of the Special Servicer to so extend such Mortgage Loan is in
the best interest of the Holders who have elected such Extension Adviser.
The Extension Advisor's review shall consist of the review of
relevant information furnished to it by the Special Servicer and such other
information as it may have or obtain with respect to the subject Mortgage Loan,
and the circumstances (legal, market, physical, financial and otherwise) which
may impact its collection. If a written objection to such extension from the
Extension Adviser has not been received by the Special Servicer within said
ten-day period (except as the Extension Adviser may, within such 10-day period
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notify the Special Servicer in writing that it requires an additional 10 day
period to complete its investigation, in which event, the Special Servicer shall
not unreasonably refuse to grant such an additional 10 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 and may obtain information outside of its normal
data resources to fulfill its responsibilities.
(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 12 months per extension or 36 months in the
aggregate, 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 and shall provide the appraisal required by Section
3.20(d) and such further information with respect thereto as the Extension
Advisor may reasonably request. 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 initial Extension Advisor (as defined herein) shall be State
Street Bank and Trust Company. The responsibility of State Street Bank and Trust
Company as Extension Advisor shall be carried out by the Real Estate Division of
the Commercial Banking Services Area of such bank. The Holder or Holders of 51%
or more of the aggregate Certificate Principal Balance of the Registered
Certificates (other than the Class IO Certificates) will be entitled to elect or
remove at any time, as the case may be, 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 is serving 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
Certificateholders representing more than 51% of the aggregate Certificate
Principal Balance of all the Registered Certificates (other than the Class IO
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
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Registered Certificates (other than the Class IO 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 (other than the Class IO
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
(other than the Class IO 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 a
successor 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 Adviser. 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 (which fee shall be part of the "Extension
Adviser Fee," as defined below) shall not exceed the fees set forth in paragraph
(h)(i) below for each request for 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) The Extension Adviser may resign at any time by giving written
notice to the Certificateholders and the Trustee.
(f) 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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(g) It is recognized that the initial Extension Advisor also serves
as Trustee hereunder and that it intends that its duties in each of said
capacities be performed by separate divisions and/or departments. Provided that
the Trustee and initial Extension Advisor maintain procedures in place
reasonably calculated to insure that, except in situations in which its
fiduciary obligations might make it advisable that its Corporate Trust
Department seek the assistance of the Real Estate Division, (i) its duties in
each of said capacities are performed in such separate divisions and/or
departments and by different personnel and (ii) except for the reports to be
furnished to the Trustee by the initial Extension Advisor hereunder, specific
information with respect to the Trust Fund or any Mortgage Loan therein is not
made available by either division or department to the other, no liability shall
be imposed upon State Street Bank and Trust Company by reason of, or arising out
of, such relationship and the knowledge of personnel in one division or
department shall not be attributable to the other for any purpose.
(h) As compensation for its activities set forth in Section 3.24,
the Extension Advisor shall be entitled to receive the "Extension Adviser Fee,"
which shall consist of:
(i) upon the completion of each review of an extension
request, an inflation adjusted review fee of $3,000, payable out of
the Trust Fund and
(ii) for any review request that is withdrawn by a Special
Servicer or by the Trustee prior to the completion of the review, a
fee, payable equal to the lesser of (a) the full inflation adjusted
review fee (as described and computed below), or (b) a fee for the
estimated hours of effort by the reviewing officer of the Extension
Adviser, times an inflation adjusted billing factor of $325 per
hour, such adjusted billing factor to be computed in a manner
similar to the computation of the adjusted review fee as described
below.
The inflation-adjusted review fee in effect for each calendar year shall be
equal to the nearest whole dollar of the product of (a) $3,000, times (b) the
"Consumer Price Index for All Urban Consumers, U.S. City, Annual Average", which
is usually published by the U.S. Department of Commerce in mid-January of each
year (or equivalent, replacement economic index) (the "CPI") for the year
preceding the year in which the review of an extension request is completed,
divided by (c) the CPI for the year which is expected to be published in
mid-January.
(i) The Extension Adviser shall be reimbursed pursuant to Section
3.05(b)(viii) for all reasonable expenses incurred by the Extension Adviser to
the extent such expenses relate to its agreement to perform, and the actual
performance of its services; which expenses may include, but are not limited to,
attorneys' fees and expenses of outside counsel, appraisal, engineering and
consulting fees, travel expenses with respect to the investigation of a
Mortgaged Property and its market, and the costs of acquiring related data and
reports; provided, however, that such expenses shall not include the costs of
acquiring information which the Extension Adviser incurs in the ordinary course
of its business.
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(j) The Extension Adviser shall be entitled to indemnification from
the Trust Fund against all loss, cost, damage and expense, including reasonable
attorneys' fees, incurred by it without its willful misconduct or negligence, as
a result of its appointment as Extension Adviser hereunder or in the
administration of its duties hereunder. This provision shall survive termination
of this Agreement and the resignation or removal of the Extension Adviser.
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
the Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the 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 (vii), in each case to the extent of
the remaining portion of the Available Distribution Amount, in the following
order of priority:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with,
all Distributable Certificate Interest in respect of each Class of
Senior Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class
A-1 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1 Certificates pursuant to clause (ii)
above);
(iv) after 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);
(v) to distributions to the Holders of the Class A-1
Certificates, the Class A-2 Certificates and the Class A-3
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
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and Additional Trust Fund Expenses, if any, previously allocated to
such Classes of Certificates and not previously reimbursed;
(vi) 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;
(vii) after 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);
(viii) 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;
(ix) 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;
(x) after the Class Principal Balance of the Class B
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class C Certificates, in an amount (not to
exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates);
(xi) 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;
(xii) 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;
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(xiii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class D Certificates, in an amount (not to
exceed the Class Principal Balance of the Class D Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates);
(xiv) 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;
(xv) 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;
(xvi) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates);
(xvii) 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;
(xviii) 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;
(xix) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class F Certificates, in an amount (not to
exceed the Class Principal Balance of the Class F Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates);
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(xx) 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;
(xxi) 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;
(xxii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class G Certificates, in an amount (not to
exceed the Class Principal Balance of the Class G Certificates
outstanding immediately prior to such Distribution Date) equal to
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);
(xxiii) to distributions to the Holders of the Class G
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 G Certificates and not previously reimbursed;
(xxiv) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxv) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to
exceed the Class Principal Balance of the Class H Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates);
(xxvi) to distributions to the Holders of the Class H
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
(xxvii) 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
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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.
(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, Class G
and Class H 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, Class G and Class H 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) 25% 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, Class G
and Class H 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, Class G and Class H 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 collected, 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 the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
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Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates) and is the registered owner of
Certificates the aggregate initial Certificate Principal Balance of which is at
least $5,000,000 or initial Percentage Interest (in the case of the Class IO
certificates) of which is at least 10%, 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.
(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
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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 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
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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 R, S, T, U, V, W, X and Y to the extent of one month's interest
accrued at a rate equal to the REMIC II Remittance Rate minus 6.96% on the
Uncertificated Principal Balance of REMIC II Regular Interest R, S, T, U, V, W,
X and Y outstanding immediately prior to such Distribution Date; in the case of
interest which has accrued on Component IO-2a, such amounts shall be deemed to
have first been distributed to REMIC II Regular Interest R, to the extent of one
month's interest accrued at the rate of .27% per annum on the Uncertificated
Principal Balance of REMIC II Regular Interest R outstanding immediately prior
to such Distribution Date; and in the case of interest which has accrued on
Component IO-2b such amounts shall be deemed to have first been distributed to
REMIC Regular Interest S, to the extent of one month's interest accrued at the
rate of .14% per annum on the Uncertificated Principal Balance of REMIC II
Regular Interest S 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:
(i) as deemed distributions of interest in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest in
respect of each such REMIC I Regular
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Interest for such Distribution Date and, to the extent not
previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, as to each such REMIC I Regular Interest, the
excess, if any, of the Uncertificated Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to such
Distribution Date, over the Stated Principal Balance of the related
Mortgage Loan (or Successor REO Loan) that will be outstanding
immediately following such Distribution Date; and
(iii) as 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 Trustee shall forward by mail (or
electronic medium to any Rating Agency or those Holders of any Class of Regular
Certificates who so request), not facsimile, to the Depositor, the Master
Servicer and all of the Holders of each Class of Regular Certificates, the
initial beneficial owners of each Class of Regular Certificates and subsequent
beneficial owners of the Regular Certificates (a list of which shall be provided
to the Trustee on the Closing Date substantially in the form set forth on
Exhibit L hereto or, in the case of subsequent beneficial owners, as identified
to the reasonable satisfaction of the Trustee) upon their written request to the
Trustee, 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;
(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;
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(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 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,
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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;
(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
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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
(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
Updated Mortgage Loan Schedule. The corresponding Collection Report will be
provided by electronic medium (including computer diskette) to any Rating Agency
or those Holders of any Classes
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of Regular Certificates who so request. Insofar as any of the information to be
provided pursuant to clauses (i) through (xxvi) above is adequately reflected in
the Updated Mortgage Loan Schedule, such information need not be repeated in the
Distribution Date Statement provided that the Trustee shall only be obligated to
deliver the Updated Mortgage Loan Schedule to the extent such document is
delivered to it by the Special Servicer in accordance with Section 3.12(c); 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 Trustee
shall be required on each Distribution Date to deliver the related Distribution
Date Statement and corresponding Updated Mortgage Loan Schedule to each holder
of Registered Certificates set forth on Exhibit L hereto. In addition, each such
Distribution Date Statement 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 Trustee 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 Trustee 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 Trustee 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 Trustee 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 Capital (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, if
any, 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 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 Trustee 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
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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 Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee 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 reasonable fee specified by the
Trustee, the Trustee 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
Trustee shall determine in their reasonable discretion).
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the 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.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust as may be
provided to it by the Depositor, the Master Servicer or the Special Servicer or
gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time (provided, however, that it shall have no
obligation to do so), provided that (A) the Trustee shall give the Depositor
three business days' advance notice before doing so, (B) prior to any Event of
Default, any such Additional Information shall only be furnished with the
consent or at the request of the Depositor (except pursuant to clause (E)
below), (C) the Trustee shall be entitled to indicate the source of all
information furnished by it, and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion, (D) the Trustee shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine and (E) this provision shall not
prevent the Trustee, whether with or without the consent of the Depositor, from
furnishing information with respect to the Trust Fund and its administration
thereof to any Person, if it reasonably determines that the furnishing of such
information is required by applicable law. Prior to an Event of Default, the
Trustee shall forward to the Depositor any requests for Additional Information
which, for their fulfillment, require the
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consent of the Depositor. Nothing herein shall be construed to impose upon the
Trustee any obligation or duty to furnish or distribute any Additional
Information to any Person in any instance.
(b) Not later than 2:00 P.M. on the fourth Business Day following
each Determination Date or, if in any month the Distribution Date is the fifth
Business Day following the Determination Date, then not later than the third
Business Day following the Related Determination Date, the Master Servicer (with
respect to that information allocated to the Master Servicer on Exhibit M
hereto) and the Special Servicer (with respect to that information allocated to
the Special Servicer on Exhibit M hereto), as the case may be, shall furnish to
the Trustee, the Depositor and each other (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 Trustee or the Depositor, as
the case may be, the Special Servicer 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 Special Servicer to the Trustee 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 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);
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(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 Trustee;
(v) such other information regarding the Mortgage Loan or
related Mortgage Property and any REO Properties as the Trustee 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 Trustee may, subject to the provisions of
subclauses (A) through (D) of Section 4.02(a) 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.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee 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 Trustee shall not be responsible to
recompute, recalculate or verify the information provided to it by the Master
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 received after the Determination Date with respect to the
related Collection Period or 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
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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, as of 3:00 p.m., New York City time, on any P&I Advance Date,
the Master Servicer shall not have made any P&I Advance required to be made on
such date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (704) 383-9356 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (704) 383-5136 (or such alternative number provided
by the Master Servicer to the Trustee in writing) as soon as possible, but in
any event before 10:00 a.m., New York City time, on the next Business Day. If
after such notice by facsimile, the Trustee does not receive the full amount of
such P&I Advances by 11:00 a.m., New York City time, on the Business Day
immediately following such P&I Advance Date, then (i) the Trustee shall make the
portion of such P&I Advances that was required to be, but was not, made by the
Master Servicer on such P&I Advance Date and (ii) the provisions of Sections
7.01 and 7.02 shall apply.
(b) 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, Additional 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 (including received as net income from REO
Properties) 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 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, Additional 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
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Appraisal Reduction Amount exists with respect to such Required Appraisal Loan,
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, and the Class A-3 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; which
appraisal shall be conducted in accordance with the standards of the Appraisal
Institute take into account the factors specified in Section 3.18(e), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would consider
(or, if no such appraisal has been performed pursuant to this Section 4.03(c), a
copy of an appraisal of the related Mortgaged Property performed within the
twelve months preceding such determination by an Independent Appraiser or other
expert in real estate matters), 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,
compounded annually, accrued on the amount of such P&I Advance from the date
made to but not including the date of
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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 H Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; second, to the Class G
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; third, to the Class F Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fourth, to the Class E
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fifth, to the Class D Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; sixth, to the Class C
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; and seventh, 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. Notwithstanding anything
to the contrary contained in this Agreement, any reference to the allocation of
Appraisal Reduction Amounts, involving any reduction of Class Principal Balance
shall be for purposes of calculating the related Appraisal Reduction Amount
Shortfall and not as an actual reduction of Class Principal Balance.
(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 R with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular
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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 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-3 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, allocated to the Class B 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 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 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 D 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 Appraisal Reduction
Amount and Realized Loss and Additional Trust Fund Expense, if any, allocated to
the Class E 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; and each
Realized Loss and Additional Trust Fund Expense, if any, allocated to the Class
F, Class G and/or Class H 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 Y, with a corresponding reduction in the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(c) The excess of the principal balance on any Mortgage Loan over
the related Appraisal Reduction Amount Shortfall is referred to herein as the
"Required Appraisal Loan Value." To the extent any amount on a Required
Appraisal Mortgage Loan is recovered in excess of the Required Appraisal Loan
Value (after giving effect to all other amounts previously collected with
respect thereto), to the extent such amount has been included as part of the
Principal Distribution Amount on a prior Distribution Date, such amount will be
distributed to the Certificateholders of each Class of Certificates to which an
Appraisal Reduction Amount has been allocated solely from any recovery on such
Required Appraisal Mortgage Loan, up to an amount equal to the Appraisal
Reduction Amount Shortfall allocated to such Class of Certificates from the date
of such allocation to the end of the Collection Period in which such an amount
is so recovered.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made
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pursuant to Section 4.01, Section 5.02(d) and Article IX 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.
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.
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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 or initial Certificate Notional Amount, as the
case may be, as of the Closing Date of not less than $1,000 in the case of the
Registered Certificates, and not less than $250,000 in the case of the Class E,
Class F and Class G Certificates, and in each such case in integral multiples of
$1 in excess thereof.
(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 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
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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 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
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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 F, Class G or Class H
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 by a Responsible Officer of either the Trustee or
the Certificate Registrar to the contrary, conclusively rely,
representing and
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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 fact not permitted by
this Section 5.02(d) or for making any payments due on
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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 any information available to it which is 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, the Master Servicer and the Special Servicer for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided
that there shall have been delivered to the Certificate Registrar
and the Master Servicer the following:
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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, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor and the Special
Servicer shall each keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement and the Master Servicer shall keep in full effect
its existence and rights as a national banking association under the laws of the
United States.
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 the Rating Agencies, such
succession will not result in qualification, downgrading or withdrawal of the
ratings then assigned by the Rating Agencies to any Class of Certificates; (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; and
(iii) in the case of a successor or surviving Person to the Master Servicer, it
is determined by the Trustee in its reasonable judgment to have, after the
merger, consolidation or transfer, as the case may be, financial and servicing
capabilities comparable to that of the Master Servicer.
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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 willful 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 unless the requirements for
resignation set forth in the immediately preceding sentence are met. If,
pursuant to any provision hereof, the duties of the Master Servicer or the
Special Servicer are transferred to a successor thereto, the entire amount of
compensation payable to the Master Servicer or the Special Servicer, as the case
may be, that accrues pursuant hereto from and after the date of such transfer
shall 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
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or the Special Servicer as a party to this Agreement. The Depositor shall not
have any responsibility or liability for any action or failure to act by the
Master Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.02 to serve as Special Servicer hereunder and to replace any existing Special
Servicer or any Special Servicer that has resigned or otherwise ceased to serve
as Special Servicer. Such Holder or Holders may also select a representative
(the "Controlling Class Representative") from whom the Special Servicer will
seek advice and approval and take direction under certain circumstances, as
described herein. 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.
If such Holders have not replaced the Special Servicer within 30 days of such
Special Servicer's resignation or the date such Special Servicer has ceased to
serve in such capacity the Trustee shall designate a successor Special Servicer
meeting the requirements set forth in Section 6.02. The designated Person shall
become the Special Servicer on the date that the Trustee shall have received
written confirmation from all of the Rating Agencies that the appointment of
such Person will not result in the qualification, downgrading or withdrawal of
the rating or ratings assigned to one or more Classes of the Certificates. The
appointment
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of such designated Person as Special Servicer shall also be subject to receipt
by the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit 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
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as the Trustee shall reasonably determine. If at any time Certificateholders
holding greater than 50% of the Voting Rights of all Certificateholders
(calculated without regard to the Certificates beneficially owned by the Master
Servicer or its Affiliates or the Special Servicer or its Affiliates) shall have
failed to object in writing to the proposal described in the written notice, 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.
SECTION 6.11. The Controlling Class Representative.
The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and the Special Servicer will not be permitted to take any of the following
actions unless the Controlling Class Representative has approved such action in
writing within five Business Days (provided that if such written notice has not
been received by the Special Servicer within five Business Days, then the
Controlling Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification of a monetary term of a Mortgage Loan
other than a modification consisting of the extension of the
maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO
Property (other than in connection with the termination of the Trust
Fund);
(iv) any determination to bring an REO Property into
compliance with applicable environmental laws;
(v) any acceptance of substitute or additional collateral for
a Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause; and
(vii) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class
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Representative may deem advisable or as to which provision is otherwise made
herein; provided that no such direction or approval rights provided in this
Section 6.11 may require or cause the Special Servicer to violate any provision
of this Agreement or the REMIC Provisions, including the Special Servicer's
obligation to act in accordance with the Servicing Standards or expose the
Master Servicer, the Special Servicer, the Trust Fund or the Trustee to
liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of holders of some Classes of the
Certificates and, absent willful misfeasance, bad faith or negligence on the
part of the Controlling Class Representative, agrees to take no action against
the Controlling Class Representative or any of its officers, directors,
employees, principals or agents as a result of such a special relationship or
conflict.
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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,
provided, however, that with respect to any such failure which is
not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure
period of thirty (30) days to effect such cure so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced
to cure such failure within the initial 30-day period and has, as
determined by the Trustee in its reasonable discretion, diligently
pursued, and is continuing to pursue, a full cure; or
(iv) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special
Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of
the Voting Rights, provided, however, that with
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respect to any failure which is not curable within such 30-day
period, the Master Servicer or the Special Servicer, as the case may
be, shall have an additional cure period of thirty (30) days so long
as the Master Servicer or the Special Servicer, as the case may be,
has commenced to cure within the initial 30-day period and, as
determined by the Trustee in its reasonable discretion, has
diligently pursued, and is continuing to pursue, a full cure; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of
or relating to it or of or relating to all or substantially all of
its property; or
(vii) the Master Servicer or the Special Servicer shall admit
in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(viii) the consolidated net worth of the Master Servicer 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 written notice from a
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; 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 11:00 a.m. New York
City time on the next Business Day succeeding such P&I Advance Date.
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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 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) 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, 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 or Special 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
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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 and of Section 7.03(b), the Trustee shall not be deemed to have
knowledge of an event which constitutes, or which with the passage of time or
notice, or both, would constitute an Event of Default described in clauses
(i)-(x) of subsection (a) above unless a Responsible Officer of the Trustee
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)(x), 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 the Trustee is not approved as a Master Servicer or a
Special Servicer, as the case may be, by any of the Rating Agencies or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so
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request in writing to the Trustee, promptly appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02, 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 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 and the Rating
Agencies notice of such occurrence, unless such default shall have been cured.
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SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) or (x) of Section 7.01(a) may be waived only by
all of the Certificateholders of the affected Classes. Upon any such waiver of
an Event of Default, such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to Voting Rights
with respect to the matters described above.
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;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to
the Trustee hereunder shall also be available to it in its capacity
as Paying Agent, Certificate Registrar, REMIC Administrator and
Custodian.
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;
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(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible for all
acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder; 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.
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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.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and to itself all earned but unpaid Trustee's
Fees, as compensation for all services rendered by the Trustee in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder. The Trustee's Fee shall accrue from
time to time at a rate equal to one-twelfth of the product of (a) the Trustee
Fee Rate and (b) the aggregate Certificate Balance of the Certificates. 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 ("Trustee Liability"); provided that neither the Trustee nor any of
the other above specified Persons shall be entitled to indemnification pursuant
to this Section 8.05(b) for (1) any liability specifically required to be borne
thereby pursuant to the terms hereof, or (2) any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of the Trustee's obligations and duties hereunder, or as may arise
from a breach of any representation, warranty or covenant of the Trustee made
herein. The provisions of this Section 8.05(b) and of Section 8.05(c) shall
survive any resignation or removal of the Trustee and appointment of a successor
trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any other parties on the one
hand and the Trustee on the other in connection with the actions or omissions
which resulted in such Trustee Liability, as well as any other relevant
equitable considerations.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State
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thereof or the District of Columbia, authorized under such laws to exercise
trust powers, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state banking authority. If
such association or corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such association or corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Trustee shall 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 the Certificates by any Rating
Agency. In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07; provided that if the
Trustee shall cease to be so eligible because its combined capital and surplus
is no longer at least $100,000,000 or its long-term unsecured debt rating no
longer conforms to the requirements of the immediately preceding sentence, and
if the Trustee proposes to the other parties hereto to enter into an agreement
with (and reasonably acceptable to) each of them, and if in light of such
agreement the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause any Rating Agency to qualify,
downgrade or withdraw any rating assigned thereby to any Class of Certificates,
then upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is adversely
affected thereby. The corporation or association serving as Trustee may have
normal banking and trust relationships with the Depositor, the Master Servicer,
the Special Servicer and their respective Affiliates.
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
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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 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.
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(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do 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
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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 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 successor Trustee or its
designee may thereupon assume all of the rights and, except to the extent they
arose prior to the date of assumption, obligations of the Custodian under such
agreement or alternatively, may terminate such agreement without cause and
without payment of any penalty or termination fee; and (iii) does not permit the
Custodian any rights of indemnification that may be satisfied out of assets of
the Trust Fund. The appointment of one or more Custodians shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. The initial Custodian
shall be the Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to
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require that such notice, information or documents also be provided to the
Trustee. Any Custodian hereunder shall at all times maintain a fidelity bond and
errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents, which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. Each Authenticating Agent must be organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to do a trust business, have a combined capital and surplus of at
least $15,000,000, and be subject to supervision or examination by federal or
state authorities. Each Authenticating Agent shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder. The initial Authenticating Agent
shall be the Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Authenticating Agent, any provision or requirement
herein requiring notice or any information or documentation to be provided to
the Authenticating Agent shall be construed to require that such notice,
information or documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
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.
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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, Standard & Poor's and DCR, or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies. The Trustee may enter into agreements to appoint a Paying Agent
which is not the Trustee, provided that, such agreement: (i) is consistent with
this Agreement in all material respects and requires the Paying Agent to comply
with this Agreement in all material respects and requires the Paying Agent to
comply with all of the applicable conditions of this Agreement; (ii) provides
that if the Trustee shall for any reason no longer act in the capacity of
Trustee hereunder (including, without limitation, by reason of an Event of
Default), the successor Trustee or its designee may thereupon assume all of the
rights and, except to the extent they arose prior to the date of assumption,
obligations of the Paying Agent under such agreement or alternatively, may
terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) does not permit the Paying Agent any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of any Paying Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of any Paying Agent. 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.
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(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Trustee may at any time terminate the agency of
any REMIC Administrator by giving written notice of termination to such REMIC
Administrator , the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 8.14, the Trustee may appoint a
successor REMIC Administrator, in which case the Trustee shall given written
notice of such appointment to the Master Servicer and the Depositor and shall
mail notice of such appointment to all Holders of Certificates; provided,
however, that no successor REMIC Administrator shall be appointed unless
eligible under the provisions of this Section 8.14. Any successor REMIC
Administrator upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 8.15. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, any Certificateholder and to the OTS, the FDIC and
any other banking or insurance regulatory authority that may exercise authority
over any Certificateholder, access to any documentation regarding the Mortgage
Loans within its control that may be required to be provided by this Agreement
or by applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
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
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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, including, but not limited to, its responsibility to make P&I
Advances if the Master Servicer fails to make a P&I Advance pursuant to Section
7.02, will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and adversely
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
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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, cost or expenses, including
reasonable attorneys' fees, arising from the Trustee's execution of such
reports, statements and information that contain errors or omissions or is
otherwise misleading, provided, however, that if the indemnification provided
for herein is invalid or unenforceable, then the Depositor shall contribute to
the amount paid by the Trustee as a result of such liability in such amount as
is necessary to limit the Trustee's responsibility for any such payment to any
amount resulting from its own fault.
(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 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
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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, the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder 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, the Special
Servicer or the Majority Subordinate Certificateholder 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. The Special Servicer or the Majority Subordinate Certificateholder
shall not have the right to effect
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such a purchase if, within 30 days following the Special 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, the Special Servicer's, the Majority Subordinate
Certificateholder's or the Depositor's purchase of all of the Mortgage Loans and
each REO Property remaining in REMIC I, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor, as
applicable, shall deliver to the Paying Agent for deposit in the Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur an amount in
immediately available funds equal to the above-described purchase price. In
addition, the Master Servicer shall transfer to the Distribution Account all
amounts required to be transferred thereto on such P&I Advance Date from the
Certificate Account pursuant to the first paragraph of Section 3.04(b), together
with any other amounts on deposit in the Certificate Account that would
otherwise be held for future distribution. Upon confirmation that such final
deposit has been made, the Trustee shall release or cause to be released to the
Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder 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, the Special Servicer,
the Majority Subordinate Certificateholder 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
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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, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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
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Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) 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;
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(xix) 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;
(xx) 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;
(xxi) 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;
(xxii) 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;
(xxiii) to distributions to the Holders of the Class G 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 G Certificates and not
previously reimbursed;
(xxiv) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxv) to distributions of principal to the Holders of the Class H
Certificates, in an amount equal to the Class Principal Balance of the
Class H Certificates outstanding immediately prior to such Distribution
Date.
(xxvi) to distributions to the Holders of the Class H 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
(xxvii) 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,
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Class H 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 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 set forth in an Opinion of Counsel
obtained at the expense of the Trust Fund;
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(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 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), November 21, 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, with
respect to State and Local Taxes, any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide to: (i) any Transferor
of a Residual Certificate, 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)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Article X provided
that no liability shall be imposed upon the REMIC Administrator under this
Clause if another party has responsibility for payment of such tax under Clauses
(iii) or (v) of this Section; (ii) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; (iii) the Master Servicer, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under Article III or this Article X; (iv) the Trustee, if
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such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article X; (v) the Depositor, if such tax was imposed due
to the fact that any of the Mortgage Loans did not, at the time of their
transfer to the REMIC I, constitute a "qualified mortgage" as defined in Section
860G(a)(3) of the Code; or (vi) the Trust Fund in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section
3.17(a)(iii) shall be charged to and paid by the Trust Fund. Any such amounts
payable by the Trust Fund shall be paid by the Paying Agent upon the written
direction of the REMIC Administrator out of amounts on deposit in the
Distribution Account in reduction of the Available Distribution Amount pursuant
to Section 3.05(b). 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
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REMIC III under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(n) Except in connection with Section 3.17(a)(iii), none of the
Trustee, the Master Servicer and the Special Servicer shall enter into any
arrangement by which REMIC I, REMIC II or REMIC III will receive a fee or other
compensation for services nor 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) 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 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
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without the consent of the Holders of all Certificates then outstanding, (iv)
modify the provisions of Section 3.20 without the consent of the Holders of
Certificates entitled to all of the Voting Rights 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), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Certificate Account or the Distribution
Account pursuant to Section 3.05.
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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 herein before 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, First Union National Bank of North Carolina, First Union Capital
Markets Group, One First Union Center, TW9, 301 South College Street, Charlotte,
North Carolina 28288-0600, Attention: MLMI 1996 C-2, facsimile number:
704-383-9356; (iii) in the case of the Special Servicer, CRIIMI MAE Service
Limited Partnership, 11200 Rockville Pike, Rockville, Maryland 20852, Attention:
Legal Department-MLMI 1996 C-2, facsimile number: 301-231-0334; (iv) in the case
of the Trustee, State Street Bank and Trust Company, Corporate Trust Department,
225 Franklin Street, Boston, Massachusetts 02110, Attention: MLMI 1996 C-2,
facsimile number: 617-664-5367; 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; (B)
Duff & Phelps Credit Rating Co., 55 East Monroe Street, Chicago, Illinois 60603,
Attention: Structured Finance - Commercial Real Estate Monitoring, facsimile
number 312-263-2852; and (C) 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.
<PAGE>
-169-
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
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,
<PAGE>
-170-
such mandatory provisions of said Article 4-A shall prevail, provided that if
said Article 4-A shall not apply to this Agreement, should at any time be
repealed, or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, such mandatory provisions of such Article 4-A shall
cease to have any further effect upon the provisions of this Agreement.
SECTION 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
<PAGE>
-171-
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:
(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 the statements and reports described in Section 3.12(b);
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.
<PAGE>
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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 L. ACKERMAN
-----------------------------------
Name: Bruce L. Ackerman
Title: Vice President
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Master Servicer
By: /s/ JOHN M. CHURCH
-----------------------------------
Name: John M. Church
Title: Senior Vice President
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
Special Servicer
By: CRIIMI MAE MANAGEMENT, INC., a
Maryland corporation, its
general partner
By: /s/ H. WILLIAM WILLOUGHBY
-----------------------------------
Name: H. William Willoughby
Title: President
STATE STREET BANK AND TRUST COMPANY
Trustee
By: /s/ DAWN M. ZANOTTI
-----------------------------------
Name: Dawn M. Zanotti
Title: Assistant Vice President
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of State Street Bank and Trust
North Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No._________
-1-
<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., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, CLASS G
AND CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE, THE 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
-2-
<PAGE>
includes any successor entity under the Agreement), First Union National Bank of
North Carolina (in such capacity, hereinafter called the "Master Servicer",
which term includes any successor entity under the Agreement), CRIIMI MAE
Services Limited Partnership in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 State Street Bank and Trust Company, 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 Trustee 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
-3-
<PAGE>
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1 Certificates are exchangeable for new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
-4-
<PAGE>
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the 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 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
-5-
<PAGE>
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, 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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:
STATE STREET BANK AND
TRUST COMPANY,
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.
STATE STREET BANK AND
TRUST COMPANY
as Authenticating Agent
By:____________________________________
Authorized Officer
-7-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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>
_____________________________________________________________________________.
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>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. ____________
-1-
<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., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, CLASS G
AND CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE, 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 Investors, Inc. (hereinafter called the "Depositor", which term
-2-
<PAGE>
includes any successor entity under the Agreement), First Union National Bank of
North Carolina (in such capacity, hereinafter called the "Master Servicer",
which term includes any successor entity under the Agreement), CRIIMI MAE
Services Limited Partnership (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 State Street Bank and Trust Company, 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 Trustee 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
-3-
<PAGE>
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
-4-
<PAGE>
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the 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 whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment
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<PAGE>
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, 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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _____________
STATE STREET BANK AND
TRUST COMPANY,
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.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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>
___________________________________________________________________________.
Distributions made by check (such check to be made
payable to ____________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No.__________
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<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., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, CLASS G
AND CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE, 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 Investors, Inc. (hereinafter called the "Depositor", which term
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<PAGE>
includes any successor entity under the Agreement), First Union National Bank of
North Carolina (in such capacity, hereinafter called the "Master Servicer",
which term includes any successor entity under the Agreement), CRIIMI MAE
Services Limited Partnership (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 State Street Bank and Trust Company, 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 Trustee 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
-3-
<PAGE>
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-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 connection with any transfer or exchange of Class A-3
Certificates.
-4-
<PAGE>
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the 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 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
-5-
<PAGE>
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, 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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:_________
STATE STREET BANK AND
TRUST COMPANY,
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.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By:_____________________________________
Authorized Officer
-7-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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>
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>
EXHIBIT A-4
FORM OF CLASS IO CERTIFICATE
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement:__________ 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No.____________________
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>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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
NOVEMBER ___, 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 NOVEMBER 5, 1996
AND THE PROSPECTUS SUPPLEMENT DATED NOVEMBER __, 1996 RELATING TO THIS
CERTIFICATE) OF 0% (THE "PREPAYMENT ASSUMPTION"), THIS $__________ OF INITIAL
COMPONENT NOTIONAL AMOUNT, THE YIELD TO MATURITY IS _______% PER ANNUM, AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$_________ PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A
RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
-2-
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by all the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Merrill Lynch Mortgage Investors, Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), First Union National Bank of North Carolina (in such
capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Servies Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and State Street Bank and
Trust Company (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 21st day of each month or, if such 21st 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 State Street Bank and Trust Company 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>
this Certificate at the offices of the Trustee 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>
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 IO 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
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<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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY,
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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>
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>
EXHIBIT A-5
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No.__________
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<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., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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 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>
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS A-3 CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G
AND CLASS H 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), First Union National Bank of
North Carolina (in such capacity, hereinafter called the "Master Servicer",
which term includes any successor entity under the Agreement), CRIIMI MAE
Services Limited Partnership (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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>
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 State Street Bank and Trust Company, 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 Trustee 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 Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange
-4-
<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>
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>
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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By:_____________________________________
Authorized Officer
-8-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
-1-
<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>
EXHIBIT A-6
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum C Certificates as of the Closing
Date:__________
Date of Pooling and Servicing Initial Certificate Principal
Balance of this Class C
Agreement:__________ 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No.__________
-1-
<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., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, 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").
-2-
<PAGE>
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, CLASS G AND CLASS H
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), First Union National Bank of
North Carolina (in such capacity, hereinafter called the "Master Servicer",
which term includes any successor entity under the Agreement), CRIIMI MAE
Services Limited Partnership (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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
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<PAGE>
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 State Street Bank and Trust Company, 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 Trustee or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
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<PAGE>
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class C Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class C Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of 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 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,
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<PAGE>
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 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>
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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By: ______________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
_______________________________________________________________________________.
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Mortgage Pass-Through Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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
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<PAGE>
and notices should be mailed to _______________________________________________
_______________________________________________________________________________.
This information is provided by _____________________, the Assignee
named above, or ________________________, as its agent.
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<PAGE>
EXHIBIT A-7
FORM OF CLASS D CERTIFICATE
CLASS D MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum D Certificates as of the Closing
Date:__________
Date of Pooling and Servicing Initial Certificate Principal
Balance of this Class D
Agreement:__________ 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No.__________
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<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., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, 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
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<PAGE>
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE 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, CLASS G AND CLASS H 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), First Union National Bank of
North Carolina (in such capacity, hereinafter called the "Master Servicer",
which term includes any successor entity under the Agreement), CRIIMI MAE
Services Limited Partnership (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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
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<PAGE>
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 State Street Bank and
Trust Company, 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 Trustee or such other
location specified in the notice to the Holders hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Trustee is subsequently notified in writing.
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>
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.
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,
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<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 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 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.
-6-
<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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By: ____________________________________
Authorized Officer
-8-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
________________________________________________________________.
This information is provided by _________________________, the
Assignee named above, or ____________________________, as its agent.
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<PAGE>
EXHIBIT A-8
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer: CUSIP No.____________
CRIIMI MAE Services Limited
Partnership
Certificate No.1
-1-
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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 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
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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 CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER ___, 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 NOVEMBER 5, 1996 AND THE PROSPECTUS SUPPLEMENT DATED
NOVEMBER ___, 1996 RELATING TO THIS CERTIFICATE) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS $28,458,000 OF INITIAL CERTIFICATE BALANCE AMOUNT, THE YIELD
TO MATURITY IS _____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $__________ PER $1,000 OF INITIAL
CERTIFICATE 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, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS G AND CLASS H 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
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term includes any successor entity under the Agreement), First Union National
Bank of North Carolina (in such capacity, hereinafter called the "Master
Servicer", which term includes any successor entity under the Agreement), CRIIMI
MAE Services Limited Partnership (in such capacity, hereinafter called the
"Special Servicer", which term includes any successor entity under the
Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 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 First Union National Bank of North Carolina, 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
Trustee 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
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<PAGE>
contemplated by the preceding sentence, will be made by check mailed to the
address of the Holder that surrenders this Certificate as such address last
appears in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class 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
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<PAGE>
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 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
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<PAGE>
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 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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY
as Authenticating Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_____________________________________________________
_____________________________________________________
_____________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of______________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ____________________________________
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-9
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer: CUSIP No.__________
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
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<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, 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.
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<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS 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 AND CLASS H 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),
First Union National Bank of North Carolina (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), CRIIMI MAE Services Limited Partnership (in such capacity,
hereinafter called the "Special Servicer", which term includes any successor
entity under the Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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
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product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class F Certificates on the
applicable Distribution Date pursuant to the Agreement. All Distributions made
under the Agreement on this Class F Certificate will be made by State Street
Bank and Trust Company, 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 Trustee 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 Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
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<PAGE>
The Class F Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of 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.
-5-
<PAGE>
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 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.
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<PAGE>
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By:_____________________________________
Authorized Officer
-8-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
__________________________________________
__________________________________________
__________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
__________________) and all applicable statements and notices should be mailed
to ____________________________________
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-10
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer: CUSIP No.___________
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
-1-
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, 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 (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 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 PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO
THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE AGREEMENT.
-2-
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, 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, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H 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 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),
First Union National Bank of North Carolina (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), CRIIMI MAE Services Limited Partnership (in such capacity,
hereinafter called the "Special Servicer", which term includes any successor
entity under the Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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
-3-
<PAGE>
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class F Certificates on the
applicable Distribution Date pursuant to the Agreement. All Distributions made
under the Agreement on this Class F Certificate will be made by State Street
Bank and Trust Company, 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 Trustee 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 Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
-4-
<PAGE>
The Class 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 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 F 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.
-5-
<PAGE>
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 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.
-6-
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating Agent
By:_____________________________________
Authorized Officer
-8-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________________
___________________________________________
___________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
-1-
<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>
EXHIBIT A-11
FORM OF CLASS H CERTIFICATE
CLASS H MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
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.
Initial Pass-Through Class Principal Balance of the Class
Rate: ___% per annum H Certificates as of the Closing
Date:__________
Date of Pooling and Servicing Initial Certificate Principal
Agreement:__________ Balance of this Class H 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer: CUSIP No.__________
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
-1-
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND TRUST COMPANY, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, CRIIMI MAE SERVICES LIMITED PARTNERSHIP 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, 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 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 H
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
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<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-1, CLASS A-2,
CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION,
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 H
Certificate (obtained by dividing the principal amount of this Class H
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class H Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class H Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Merrill Lynch Mortgage Investors, Inc. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
First Union National Bank of North Carolina (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), CRIIMI MAE Services Limited Partnership (in such capacity,
hereinafter called the "Special Servicer", which term includes any successor
entity under the Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st day
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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 H Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Class H Certificate will be made by State Street Bank and
Trust Company, 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 Trustee 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 Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred,
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with respect to the Mortgage Loans and the payment of interest on such advances
and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration 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
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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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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.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Authenticating 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
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________) and all applicable statements and notices should be mailed to
____________________________________
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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EXHIBIT A-12
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement:__________ 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
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THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND CALIFORNIA, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA 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, CLASS A-2, CLASS A-3, CLASS
IO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
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 First Union National Bank of North Carolina 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),
First Union National Bank of North Carolina (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), CRIIMI MAE Services Limited Partnership in such capacity,
hereinafter called the "Special Servicer", which term includes any successor
entity under the Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 Trustee 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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<PAGE>
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 State Street Bank and Trust Company, 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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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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<PAGE>
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the 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>
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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
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.
STATE STREET BANK AND
TRUST COMPANY,
as Authentication Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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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<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>
EXHIBIT A-13
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement:__________ 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
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<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND CALIFORNIA, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA 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, CLASS A-2, CLASS A-3, CLASS
IO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
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>
This certifies that First Union National Bank of North Carolina 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),
First Union National Bank of North Carolina (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), CRIIMI MAE Services Limited Partnership (in such capacity,
hereinafter called the "Special Servicer", which term includes any successor
entity under the Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 Trustee 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-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>
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 State Street Bank and Trust Company, 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>
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>
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>
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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
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.
STATE STREET BANK AND
TRUST COMPANY,
as Authentication Agent
By:_____________________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
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>
Applicable statements and notices should be mailed to ______________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-14
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1996-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1996 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:
First Union National Bank of North State Street Bank and Trust
Carolina Company
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
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<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., STATE STREET BANK AND CALIFORNIA, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA 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, CLASS A-2, CLASS A-3, CLASS
IO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
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.
-2-
<PAGE>
This certifies that First Union National Bank of North Carolina 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),
First Union National Bank of North Carolina (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), CRIIMI MAE Services Limited Partnership (in such capacity,
hereinafter called the "Special Servicer", which term includes any successor
entity under the Agreement) and State Street Bank and Trust Company (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 21st day of each month or, if such 21st 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 Trustee 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
-3-
<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
-4-
<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 First Union National Bank of North Carolina, 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
-5-
<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
-6-
<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>
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>
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>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated:__________
STATE STREET BANK AND
TRUST COMPANY,
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.
STATE STREET BANK AND
TRUST COMPANY,
as Authentication Agent
By:_____________________________________
Authorized Officer
-10-
<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>
Applicable statements and notices should be mailed to ______________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by ______________________, the Assignee
named above, or ______________, as its agent.
-2-
<PAGE>
EXHIBIT B
Mortgage Loan Schedule
B-1
<PAGE>
COMBINED SCHEDULE B
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
1 Park Victoria 2312 Victoria Drive Kansas City KS 66106 2,607,000 2,588,494.07
2 Woodcrest 3903 Camelot Circle Decatur IL 62526 4,728,000 4,694,438.03
3 Morningside 2401 Jammes Rd Jacksonville FL 32210 1,658,000 1,646,230.60
4 Charter Oaks 8196 Lincoln Avenue Evansville IN 47715 3,700,000 3,685,530.42
5 Seville 1420 North Meridian Tallahassee FL 32303 1,380,000 1,371,005.04
Road
6 Casa Del Lago 3140 Kearsage Drive Lake Havasu City AZ 86406 2,000,000 1,991,554.06
7 Park Colony 11200 Huffmeister Houston TX 77065 1,425,000 1,414,925.32
8 Northside Villas 2711 Allen Road Tallahassee FL 32312 3,036,000 3,019,786.93
9 Rolling Hills 280 John Knox Road Tallahassee FL 32303 3,108,000 3,086,898.97
10 Stonegate 217 White Drive Tallahassee FL 32304 1,106,000 1,100,332.51
11 Villager 22 Wright Parkway Fort Walton FL 32548 568,000 564,952.82
Beach
12 Wellington Place 10803 Green Creek Drive Houston TX 77070 2,451,000 2,433,671.54
13 Kimberly Club 3000 East Kimberly Road Davenport IA 52807 9,000,000 8,962,951.15
14 Williamstown Bay 3300 East Ramsey Avenue Cudahy WI 53110 850,000 846,987.18
III
15 Lakewood 1542 Arcadia Drive Jacksonville FL 32207 1,950,000 1,938,104.70
16 Turtle Place 455 Eastdale Road South Montgomery AL 36117 2,450,000 2,440,917.05
17 Park View 3101 East Artesia Long Beach CA 90805 2,531,000 2,517,084.22
Boulevard
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
1 Park Victoria 20,729.40 8.3500 77 293 4/1/03 No 255 per unit
2 Woodcrest 37,594.41 8.3500 77 293 4/1/03 No 200 per unit
3 Morningside 13,183.49 8.3500 77 293 4/1/03 No 200 per unit
4 Charter Oaks 29,771.04 9.0000 113 353 4/1/06 No 200 per unit
5 Seville 11,463.01 8.8750 77 293 4/1/03 No 274 per unit
6 Casa Del Lago 15,555.80 8.6250 293 353 4/1/21 No 200 per unit
7 Park Colony 11,354.70 8.3750 77 293 4/1/03 No 205 per unit
8 Northside Villas 24,087.94 8.6250 77 323 4/1/03 No 281 per unit
9 Rolling Hills 25,288.81 8.6250 77 293 4/1/03 No 200 per unit
10 Stonegate 8,948.65 8.8500 113 323 4/1/06 No 225 per unit
11 Villager 4,496.71 8.6000 113 323 4/1/06 No 332 per unit
12 Wellington Place 19,530.08 8.3750 77 293 4/1/03 No 200 per unit
13 Kimberly Club 70,803.04 8.7500 113 353 4/1/06 No 200 per unit
14 Williamstown Bay 6,662.69 8.7100 294 354 5/1/21 No 150 per unit
III
15 Lakewood 15,456.31 8.3125 78 294 5/1/03 No 200 per unit
16 Turtle Place 18,821.02 8.4900 114 354 5/1/06 No 200 per unit
17 Park View 21,153.47 8.9500 114 294 5/1/06 No 227 per unit
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
1 Park Victoria 8.2300 0.0400 0.0750 First Union
2 Woodcrest 8.2300 0.0400 0.0750 First Union
3 Morningside 8.2300 0.0400 0.0750 First Union
4 Charter Oaks 8.8800 0.0400 0.0750 First Union
5 Seville 8.7550 0.0400 0.0750 First Union
6 Casa Del Lago 8.5050 0.0400 0.0750 First Union
7 Park Colony 8.2550 0.0400 0.0750 First Union
8 Northside Villas 8.5050 0.0400 0.0750 First Union
9 Rolling Hills 8.5050 0.0400 0.0750 First Union
10 Stonegate 8.7300 0.0400 0.0750 First Union
11 Villager 8.4800 0.0400 0.0750 First Union
12 Wellington Place 8.2550 0.0400 0.0750 First Union
13 Kimberly Club 8.5950 0.0750 0.0750 GMAC
14 Williamstown Bay 8.5900 0.0400 0.0750 First Union
III
15 Lakewood 8.1925 0.0400 0.0750 First Union
16 Turtle Place 8.3700 0.0400 0.0750 First Union
17 Park View 8.8300 0.0400 0.0750 First Union
-13-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
18 University Place 1205 University Avenue Columbia MO 65201 4,200,000 4,182,328.80
19 The Ashford 115 South Lois Avenue Tampa FL 33609 1,238,000 1,233,709.78
20 Regency on Kennedy 4350 West Kennedy Blvd Tampa FL 33609 1,809,000 1,802,731.01
21 Hillcrest 105 West Avenue & Woodstown NJ 08098 2,650,000 2,640,635.69
Hillcrest Drive
22 Fountain Place 920 S. Washington Ave Lansing MI 48910 2,054,000 2,041,957.91
23 Parkwood Lofts II 4231 Travis Street Dallas TX 75205 2,221,000 2,214,931.00
24 Courtyard at 2035 Memorial Drive Atlanta GA 30317 2,750,000 2,738,054.33
Glenview
(Manchester Arms)
25 Sunwood Village 4020 Arville Street Las Vegas NV 89103 8,100,000 8,075,742.70
26 Riverplace 102 North River Street Janesville WI 53545 1,033,000 1,030,147.92
27 Cedar Village 217 Cedar Village Drive York PA 17402 3,750,000 3,737,350.95
28 Elsmere 1410 Cypress Avenue Elsmere DE 19805 1,288,000 1,282,405.08
(2)*29 Laurel Woods 1096 Green Holly Road Clark Summit PA 18411 1,488,000 1,481,536.31
(2)*30 Morgan Manor 124 Mountain View Way Scranton PA 18508 2,325,000 2,314,900.48
31 Franklin 165 Franklin Street Bloomfield NJ 07003 925,000 912,999.61
32 Mountain Top 48-A Forest Drive Bloomingdale NJ 07403 1,220,000 1,215,787.85
33 2540 Valentine 2540 Valentine Ave. Bronx NY 10458 825,000 821,562.26
Avenue
34 1512-24 Leland 1512-24 Leland Avenue Bronx NY 10472 1,100,000 1,096,219.80
Avenue
35 Twin Creek 401 South Twin Creek Kileen TX 76543 4,300,000 4,288,322.81
Drive
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
18 University Place 34,608.83 9.0625 114 324 5/1/06 No 300 per unit
19 The Ashford 9,801.31 8.8200 114 354 5/1/06 No 262 per unit
20 Regency on Kennedy 14,321.95 8.8200 114 354 5/1/06 No 250 per unit
21 Hillcrest 21,719.98 9.0000 115 325 6/1/06 No 240 per unit
22 Fountain Place 17,137.17 8.6250 79 271 6/1/03 No 200 per unit
23 Parkwood Lofts II 17,982.65 9.0700 79 355 6/1/03 No 250 per unit
24 Courtyard at 23,550.50 9.2500 295 295 6/1/21 No 210 per unit
Glenview
(Manchester Arms)
25 Sunwood Village 63,000.97 8.6250 55 355 6/1/01 No 225 per unit
26 Riverplace 8,326.62 9.0200 295 355 6/1/21 No 175 per unit
27 Cedar Village 31,397.36 9.2500 115 325 6/1/06 No 250 per unit
28 Elsmere 11,030.20 9.2500 115 295 6/1/06 No 294 per unit
(2)*29 Laurel Woods 32,653.84 9.2500 115 295 6/1/06 No 250 per unit
(2)*30 Morgan Manor 32,653.84 9.2500 115 295 6/1/06 No 286 per unit
31 Franklin 9,589.43 9.3750 175 175 6/1/11 No 250 per unit
32 Mountain Top 10,106.80 9.1250 115 325 6/1/06 No 306 per unit
33 2540 Valentine 7,208.00 9.5000 115 295 6/1/06 No 338 per unit
Avenue
34 1512-24 Leland 9,132.10 9.1500 115 325 6/1/06 No 269 per unit
Avenue
35 Twin Creek 34,908.62 9.1000 115 355 6/1/06 No 218 per unit
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
18 University Place 8.9075 0.0750 0.0750 GMAC
19 The Ashford 8.7000 0.0400 0.0750 First Union
20 Regency on Kennedy 8.7000 0.0400 0.0750 First Union
21 Hillcrest 8.8450 0.0750 0.0750 GMAC
22 Fountain Place 8.5050 0.0400 0.0750 First Union
23 Parkwood Lofts II 8.7400 0.1250 0.0750 Arbor
24 Courtyard at 9.1300 0.0400 0.0750 First Union
Glenview
(Manchester Arms)
25 Sunwood Village 8.5050 0.0400 0.0750 First Union
26 Riverplace 8.9000 0.0400 0.0750 First Union
27 Cedar Village 9.1300 0.0400 0.0750 First Union
28 Elsmere 9.1300 0.0400 0.0750 First Union
(2)*29 Laurel Woods 9.1300 0.0400 0.0750 First Union
(2)*30 Morgan Manor 9.1300 0.0400 0.0750 First Union
31 Franklin 9.2550 0.0400 0.0750 First Union
32 Mountain Top 9.0050 0.0400 0.0750 First Union
33 2540 Valentine 9.3800 0.0400 0.0750 First Union
Avenue
34 1512-24 Leland 9.0300 0.0400 0.0750 First Union
Avenue
35 Twin Creek 8.9450 0.0750 0.0750 GMAC
-14-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
36 Greentree I 121 Covington Road Thomasville GA 31792 725,000 722,426.99
37 Greentree II 121 Covington Road Thomasville GA 31792 546,000 544,049.38
38 Spring Hollow 2703 N Buckner Blvd Dallas TX 75228 990,000 987,268.32
39 Valleybrook 169 Roscoe Road Newnan GA 30263 1,594,000 1,588,229.50
40 Colony Woods II 3030 Continental Atlanta GA 30331 1,607,000 1,601,182.44
Colony Parkway #1608
41 Stillwater 1 Stillwater Court Savannah GA 31406 985,000 981,350.87
42 Woods on LaMonte 4800 LaMonte Lane Houston TX 77401 8,100,000 8,082,650.61
43 Jennifer Green 741 Park Avenue Orange Park FL 32073 2,434,000 2,426,779.94
44 Heather Ridge 6200 Barnes Road South Jacksonville FL 32216 1,147,000 1,143,597.61
45 Palm Cove 950 W. Main St. Mesa AZ 85201 2,500,000 2,494,475.98
46 Sunset Way I 15385 SW 73rd Terrace Miami FL 33193 1,693,000 1,686,727.94
Circle
47 Merrifield 1027-A Adams Avenue Salisbury MD 21801 2,137,000 2,129,289.29
48 Marabou Mills I 3420 Marabou Mills Indianapolis IN 46214 1,475,000 1,469,677.91
Drive
49 Orchard Place 1901 Dawson Grand Rapids MI 48116 4,300,000 4,291,528.06
50 Country Wood 791 Bateswood Drive Houston TX 77079 2,242,000 2,235,700.66
51 Candleridge Park 1601 Wooded Pine Houston TX 77073 2,309,000 2,303,910.04
52 Millcreek 1823 Stadium Road Wharton TX 77488 1,935,000 1,929,563.24
53 Art Museum 1705 Art Museum Drive Jacksonville FL 32207 2,140,000 2,135,238.72
54 Caribbean Towers 11100 62nd Avenue North Seminole FL 33542 1,100,000 1,096,972.41
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
36 Greentree I 6,133.90 9.1000 116 296 7/1/06 No 270 per unit
37 Greentree II 4,604.47 9.0600 116 296 7/1/06 No 318 per unit
38 Spring Hollow 8,190.94 9.1100 116 326 7/1/06 No 225 per unit
39 Valleybrook 13,354.97 8.9800 116 296 7/1/06 No 270 per unit
40 Colony Woods II 13,463.88 8.9800 116 296 7/1/06 No 250 per unit
41 Stillwater 8,158.43 8.8400 80 296 7/1/03 No 261 per unit
42 Woods on LaMonte 66,050.55 9.1500 80 356 7/1/03 No 230 per unit
43 Jennifer Green 19,472.53 8.7200 80 326 7/1/03 No 264 per unit
44 Heather Ridge 9,176.25 8.7200 80 326 7/1/03 No 238 per unit
45 Palm Cove 20,115.57 9.0000 296 356 7/1/21 No 175 per unit
46 Sunset Way I 14,022.56 8.8400 80 296 7/1/03 No 292 per unit
47 Merrifield 17,933.63 9.0000 116 296 7/1/06 No 291 per unit
48 Marabou Mills I 12,378.15 9.0000 116 296 7/1/06 No 254 per unit
49 Orchard Place 36,313.70 9.5500 296 356 7/1/21 No 175 per unit
50 Country Wood 18,432.46 8.7500 81 297 8/1/03 No 200 per unit
51 Candleridge Park 18,520.80 8.7500 81 327 8/1/03 No 200 per unit
52 Millcreek 15,908.48 8.7500 81 297 8/1/03 No 200 per unit
53 Art Museum 17,090.64 8.7000 81 327 8/1/03 No 238 per unit
54 Caribbean Towers 9,137.19 8.8750 117 297 8/1/06 No 265 per unit
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
36 Greentree I 8.9800 0.0400 0.0750 Continental
Wingate
37 Greentree II 8.9400 0.0400 0.0750 Continental
Wingate
38 Spring Hollow 8.9050 0.1250 0.0750 Arbor
39 Valleybrook 8.8600 0.0400 0.0750 Continental
Wingate
40 Colony Woods II 8.8600 0.0400 0.0750 Continental
Wingate
41 Stillwater 8.7200 0.0400 0.0750 Continental
Wingate
42 Woods on LaMonte 8.9950 0.0750 0.0750 GMAC
43 Jennifer Green 8.6000 0.0400 0.0750 First Union
44 Heather Ridge 8.6000 0.0400 0.0750 First Union
45 Palm Cove 8.8800 0.0400 0.0750 First Union
46 Sunset Way I 8.7200 0.0400 0.0750 Continental
Wingate
47 Merrifield 8.8800 0.0400 0.0750 Continental
Wingate
48 Marabou Mills I 8.8800 0.0400 0.0750 Continental
Wingate
49 Orchard Place 9.4300 0.0400 0.0750 First Union
50 Country Wood 8.6300 0.0400 0.0750 First Union
51 Candleridge Park 8.6300 0.0400 0.0750 First Union
52 Millcreek 8.6300 0.0400 0.0750 First Union
53 Art Museum 8.5800 0.0400 0.0750 First Union
54 Caribbean Towers 8.7550 0.0400 0.0750 First Union
-15-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
55 Briar Hill 5946 54th Avenue North Kenneth City FL 33709 1,256,000 1,252,543.05
56 254 Park Avenue 254 Park Avenue South New York NY 10010 15,715,000 15,688,373.82
South
57 298 Mulberry 298 Mulberry New York NY 10012 8,606,000 8,591,418.72
58 304 Mulberry 304 Mulberry New York NY 10012 5,683,000 5,673,371.20
59 Ridgeview 350 Six Flags Drive Austell GA 30001 2,050,000 2,044,509.71
60 Greenhills Bicycle 7909 North Grandby Kansas City MO 64151 8,100,000 8,086,626.91
Club Avenue
61 Nob Hill 600 North Semoran Winter Park FL 32792 4,043,000 4,036,556.86
Boulevard
62 Aragon Woods 8152 Aragon Woods Drive Indianapolis IN 46214 1,155,000 1,151,711.79
63 Dogwood Glenn II 2390 Woodglen Drive Indianapolis IN 46260 1,425,000 1,421,055.16
64 Meadowood 820 Hospital Road Franklin IN 46131 1,067,000 1,064,063.24
65 Colonial Arms 19 East Colonial Drive New Paltz NY 12561 3,525,000 3,518,084.99
66 Lakeview Commons 15205-15235 18th Plymouth MN 55447 2,379,000 2,375,564.32
Avenue North
67 Stratford Village 14222 Kimberly Lane Houston TX 77079 3,654,000 3,652,024.78
68 Royal Sheridan 4200 Sheridan Street Hollywood FL 33021 2,950,000 2,944,042.15
69 Old Archer Court 3001 SW Old Archer Gainesville FL 32608 1,035,000 1,032,291.80
Road #29
70 Desert Palms 210 West Brown Road Mesa AZ 85201 3,175,000 3,169,758.08
71 Spanish Oaks 3125 Clarksville Street Paris TX 75460 1,061,000 1,058,885.13
72 Slate Run 248 S. Heincke Road Miamisburg OH 45342 900,000 898,311.97
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
55 Briar Hill 10,433.00 8.8750 117 297 8/1/06 No 200 per unit
56 254 Park Avenue 125,035.60 8.8750 81 357 8/1/03 No 225 per unit
South
57 298 Mulberry 68,473.20 8.8750 81 357 8/1/03 No 200 per unit
58 304 Mulberry 45,216.50 8.8750 81 357 8/1/03 No 213 per unit
59 Ridgeview 17,259.71 9.0400 297 297 8/1/21 No 212 per unit
60 Greenhills Bicycle 65,174.43 9.0000 57 357 8/1/01 No 185 per unit
Club
61 Nob Hill 33,026.64 9.1700 81 357 8/1/03 No 221 per unit
62 Aragon Woods 9,433.06 8.6700 81 297 8/1/03 No 269 per unit
63 Dogwood Glenn II 11,802.81 8.8400 117 297 8/1/06 No 251 per unit
64 Meadowood 8,863.07 8.8750 117 297 8/1/06 No 307 per unit
65 Colonial Arms 29,826.15 9.3750 117 327 8/1/06 No 245 per unit
66 Lakeview Commons 20,247.38 9.6400 297 357 8/1/21 No 200 per unit
67 Stratford Village 29,532.46 9.0500 84 360 11/1/03 No 235 per unit
68 Royal Sheridan 24,636.60 9.2200 117 327 8/1/06 No 200 per unit
69 Old Archer Court 8,813.61 9.1800 117 297 8/1/06 No 321 per unit
70 Desert Palms 25,546.77 9.0000 297 357 8/1/21 No 175 per unit
71 Spanish Oaks 8,913.43 9.2900 297 327 8/1/21 No 275 per unit
72 Slate Run 7,380.96 8.7200 118 298 9/1/06 No 323 per unit
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
55 Briar Hill 8.7550 0.0400 0.0750 First Union
56 254 Park Avenue 8.7550 0.0400 0.0750 First Union
South
57 298 Mulberry 8.7550 0.0400 0.0750 First Union
58 304 Mulberry 8.7550 0.0400 0.0750 First Union
59 Ridgeview 8.9200 0.0400 0.0750 First Union
60 Greenhills Bicycle 8.8800 0.0400 0.0750 First Union
Club
61 Nob Hill 9.0500 0.0400 0.0750 First Union
62 Aragon Woods 8.5500 0.0400 0.0750 Continental
Wingate
63 Dogwood Glenn II 8.7200 0.0400 0.0750 Continental
Wingate
64 Meadowood 8.7550 0.0400 0.0750 Continental
Wingate
65 Colonial Arms 9.2200 0.0750 0.0750 GMAC
66 Lakeview Commons 9.5200 0.0400 0.0750 First Union
67 Stratford Village 8.8450 0.1250 0.0750 Continental
Wingate
68 Royal Sheridan 9.1000 0.0400 0.0750 First Union
69 Old Archer Court 9.0600 0.0400 0.0750 Continental
Wingate
70 Desert Palms 8.8800 0.0400 0.0750 First Union
71 Spanish Oaks 9.0850 0.1250 0.0750 Arbor
72 Slate Run 8.6000 0.0400 0.0750 Continental
Wingate
-16-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
73 Olde Mill Landing 11800 Beltsville Drive Beltsville MD 20705 18,500,000 18,478,634.91
74 Lindendale 3580 Lindendale Drive Columbus OH 43204 1,444,000 1,441,228.47
75 Clearlake Village 1239 Bay Area Boulevard Houston TX 77062 2,167,000 2,163,899.85
76 Kingswood Estates 1910 South Chipman Owosso MI 48867 1,842,000 1,838,632.58
Street
77 Ridgewood II 3863 Memorial Drive Unicorporated GA 30032 1,053,000 1,051,002.08
Decatur
78 Country View - 607 Reeve Drive Waunakee WI 53597 1,199,000 1,197,560.00
Wisconsin
79 Country View - 6324 Baker Boulevard Haltom City TX 76118 1,400,000 1,397,544.73
Texas
80 Gregory Apartments 3300 16th Street Washington DC 20010 3,500,000 3,497,648.57
81 Sutton Place 6838 Everhart Road Corpus Christi TX 78413 2,800,000 2,798,095.74
169 Beverly Hills 8757 Burton Way Beverly Hills CA 90048 5,500,000 5,486,357.62
Carmel Retirement
Hotel I
170 Beverly Hills 8750 Burton Way Beverly Hills CA 90048 4,500,000 4,488,838.05
Carmel Retirement
Hotel II
88 Skyline 1570 Sky Valley Drive Reno NV 89503 3,893,000 3,890,842.33
89 Skyview 1590 Sky Valley Drive Reno NV 89503 4,027,000 4,024,768.06
82 Islander Marina 14015 West Tahiti Way Marina Del Rey CA 90292 10,125,000 10,110,315.36
83 Park Towne Place 2201 Park Towne Place Philadelphia PA 19130 38,500,000 38,500,000.00
(3)*108 1111 Beacon 1111 Beacon Street Brookline MA 02146 5,700,000 5,693,749.67
Street***
(3)*108 1101 Beacon 1101 Beacon Street Brookline MA 02146 4,000,000 3,995,613.80
Street***
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
73 Olde Mill Landing 145,539.58 8.7500 118 358 9/1/06 No 255 per unit
74 Lindendale 11,705.43 8.5800 118 298 9/1/06 No 240 per unit
75 Clearlake Village 17,571.14 8.8750 118 328 9/1/06 No 235 per unit
76 Kingswood Estates 15,300.63 8.8750 82 298 9/1/03 No 309 per unit
77 Ridgewood II 8,585.75 8.6500 118 298 9/1/06 No 297 per unit
78 Country View - 9,270.31 8.5600 298 358 9/1/21 Yes 175 per unit
Wisconsin
79 Country View - 11,868.82 9.1250 118 298 9/1/06 No 200 per unit
Texas
80 Gregory Apartments 29,155.60 9.1900 119 329 10/1/06 No 225 per unit
81 Sutton Place 23,195.93 9.1250 83 329 10/1/03 No 267 per unit
169 Beverly Hills 48,053.32 9.5000 117 297 8/1/06 No 252 per unit
Carmel Retirement
Hotel I
170 Beverly Hills 39,316.35 9.5000 117 297 8/1/06 No 250 per unit
Carmel Retirement
Hotel II
88 Skyline 31,128.08 8.9300 359 359 10/1/26 No 150 per unit
89 Skyview 32,199.53 8.9300 359 359 10/1/26 No 150 per unit
82 Islander Marina 92,731.52 9.2500 239 239 10/1/16 Yes 299 per unit
83 Park Towne Place 313,248.70 9.1250 120 360 11/1/06 No 250 per unit
(3)*108 1111 Beacon 78,048.39 9.0000 118 358 9/1/06 No 295 per unit
Street***
(3)*108 1101 Beacon 78,048.39 9.0000 118 358 9/1/06 No 0.29 per sq. ft.
Street***
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
73 Olde Mill Landing 8.5950 0.0750 0.0750 GMAC
74 Lindendale 8.4600 0.0400 0.0750 Continental
Wingate
75 Clearlake Village 8.7550 0.0400 0.0750 First Union
76 Kingswood Estates 8.7550 0.0400 0.0750 First Union
77 Ridgewood II 8.5300 0.0400 0.0750 Continental
Wingate
78 Country View - 8.4400 0.0400 0.0750 First Union
Wisconsin
79 Country View - 8.9200 0.1250 0.0750 Continental
Texas Wingate
80 Gregory Apartments 9.0700 0.0400 0.0750 First Union
81 Sutton Place 9.0050 0.0400 0.0750 First Union
169 Beverly Hills 9.3800 0.0400 0.0750 First Union
Carmel Retirement
Hotel I
170 Beverly Hills 9.3800 0.0400 0.0750 First Union
Carmel Retirement
Hotel II
88 Skyline 8.8100 0.0400 0.0750 First Union
89 Skyview 8.8100 0.0400 0.0750 First Union
82 Islander Marina 9.1300 0.0400 0.0750 First Union
83 Park Towne Place 8.9700 0.0750 0.0750 GMAC
(3)*108 1111 Beacon 8.8800 0.0400 0.0750 First Union
Street***
(3)*108 1101 Beacon 8.8800 0.0400 0.0750 First Union
Street***
-17-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
94 Biggs Park Mall 2800 N. Elm Street Lumberton NC 5,800,000 5,775,323.17
95 5354 Dixie Highway 5354 Dixie Highway Louisville KY 683,000 677,035.33
96 801 Eastgate Drive 801 Eastgate Drive Cincinnati OH 865,000 857,445.92
97 1700 East Dublin - 1700 East Dublin - Columbus OH 741,000 734,528.82
Granville Road Granville Road
98 Herndon Centre II 460-490 Elden Street Herndon VA 4,433,000 4,404,270.30
99 Kensington Cottages 415 8th Street NW Buffalo MN 55313 1,700,000 1,690,003.51
100 G-5054 Miller Road G-5054 Miller Road Flint MI 849,000 841,585.65
101 Market Place N.C. Highway 180 Shelby NC 28150 6,600,000 6,577,790.46
Shopping Center
102 Norwest Bank 9719 North Hayden Road Scottsdale AZ 1,110,000 1,105,277.37
Building
103 4810 Outer Loop 4810 Outer Loop Louisville KY 657,000 651,262.39
104 4180 Plainfield 4180 Plainfield Grand Rapids MI 48505 659,000 653,423.78
Northeast Northeast
105 Plaza 59 10508 Bennett Road Dunkirk NY 14048 1,264,000 1,259,803.05
106 Rhodes Furniture 4363 Northeast Doraville GA 2,600,000 2,586,394.59
Store Expressway
107 Tower Glen 2216 West County Road D Roseville MN 1,598,000 1,593,952.45
Shopping Center
109 Arcadia Lakes 6432 Two Notch Road Columbia SC 1,500,000 1,496,039.01
Shopping Center
110 Central Shopping 3701 N.W. 7 Street Miami FL 33126 13,650,000 13,603,720.96
Center
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
94 Biggs Park Mall 50,171.35 9.3750 115 295 6/1/06 No 0.16 per sq. ft.
95 5354 Dixie Highway 6,310.81 9.3750 114 234 5/1/06 No 0.13 per sq. ft.
96 801 Eastgate Drive 7,992.46 9.3750 114 234 5/1/06 No 0.67 per sq. ft.
97 1700 East Dublin - 6,846.72 9.3750 114 234 5/1/06 No 0.77 per sq. ft.
Granville Road
98 Herndon Centre II 36,928.75 8.9100 113 293 4/1/06 Yes 0.16 per sq. ft.
99 Kensington Cottages 14,852.84 9.5000 113 293 4/1/06 No 300 per unit
100 G-5054 Miller Road 7,844.62 9.3750 114 234 5/1/06 No 0.37 per sq. ft.
101 Market Place 53,875.78 9.0000 115 331 6/1/06 No 0.10 per sq. ft.
Shopping Center
102 Norwest Bank 9,601.76 9.3750 115 295 6/1/06 No 0.15 per sq. ft.
Building
103 4810 Outer Loop 6,070.57 9.3750 114 234 5/1/06 No 0.70 per sq. ft.
104 4180 Plainfield 6,196.64 9.6250 114 234 5/1/06 No 0.53 per sq. ft.
Northeast
105 Plaza 59 11,043.53 9.5000 116 296 7/1/06 No 0.15 per sq. ft.
106 Rhodes Furniture 22,265.93 9.2500 78 294 5/1/03 No 0.05 per sq. ft.
Store
107 Tower Glen 13,823.07 9.3750 117 297 8/1/06 No 0.11 per sq. ft.
Shopping Center
109 Arcadia Lakes 12,716.59 9.1250 81 297 8/1/03 No 0.10 per sq. ft.
Shopping Center
110 Central Shopping 118,075.68 9.3750 116 296 7/1/06 No 0.12 per sq. ft.
Center
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
94 Biggs Park Mall 9.2550 0.0400 0.0750 First Union
95 5354 Dixie Highway 9.2550 0.0400 0.0750 First Union
96 801 Eastgate Drive 9.2550 0.0400 0.0750 First Union
97 1700 East Dublin - 9.2550 0.0400 0.0750 First Union
Granville Road
98 Herndon Centre II 8.7900 0.0400 0.0750 First Union
99 Kensington Cottages 9.3800 0.0400 0.0750 First Union
100 G-5054 Miller Road 9.2550 0.0400 0.0750 First Union
101 Market Place 8.8800 0.0400 0.0750 First Union
Shopping Center
102 Norwest Bank 9.1700 0.1250 0.0750 Continental
Building Wingate
103 4810 Outer Loop 9.2550 0.0400 0.0750 First Union
104 4180 Plainfield 9.5050 0.0400 0.0750 First Union
Northeast
105 Plaza 59 9.3800 0.0400 0.0750 First Union
106 Rhodes Furniture 9.1300 0.0400 0.0750 First Union
Store
107 Tower Glen 9.1700 0.1250 0.0750 Continental
Shopping Center Wingate
109 Arcadia Lakes 8.9700 0.0750 0.0750 GMAC
Shopping Center
110 Central Shopping 9.2050 0.0900 0.0750 First Union
Center
-18-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
111 Cor-West Plaza 703 West Main Street New Britain CT 06053 1,935,000 1,930,098.87
Shopping Center
112 Days Inn - 2735 South Woodlands Flagstaff AZ 1,650,000 1,645,843.44
Flagstaff Village Boulevard
113 Park Forest Office 3530 Forest Lane Dallas TX 2,255,000 2,249,636.84
Building
114 Sims Creek Plaza 1695-1697 Indiantown Jupiter FL 33458 1,450,000 1,440,338.13
Road
115 163 / 174 Newbury 163 & 174 Newbury Boston MA 1,515,000 1,510,073.85
Street Street
116 61-65 Brookline 61 - 65 Brookline Boston MA 02215 6,600,000 6,583,465.78
Avenue Avenue
117 Logan Healthcare 587 Washington Street Weymouth MA 02188 630,000 627,951.50
Management Plaza
118 415 Hamburg 415 Hamburg Turnpike Wayne NJ 07470 8,684,000 8,668,450.28
Turnpike
119 Lynnfield Shopping 584-592 Main Street Lynnfield MA 01940 1,761,000 1,756,483.22
Centre
120 SMC 316 3563 Berlin Turnpike Newington CT 06111 2,810,000 2,810,000.00
121 SMC 202 1380 N. Dupont Hway Dover DE 2,848,000 2,848,000.00
122 SMC 452 260 Jimmy Ann Drive Daytona Beach FL 2,810,000 2,810,000.00
125 SMC 343 123 South Kingston Bloomington IN 2,773,000 2,773,000.00
Drive
126 SMC 309 5501 Coldwater Road Fort Wayne IN 2,698,000 2,698,000.00
127 SMC 441 6502 Grape Road Mishawaka IN 2,735,000 2,735,000.00
128 SMC 214 1636 Martin Luther Houma LA 2,286,000 2,286,000.00
King Blvd.
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
111 Cor-West Plaza 16,738.20 9.3750 117 297 8/1/06 No 0.11 per sq. ft.
Shopping Center
112 Days Inn - 16,334.96 10.3750 118 238 9/1/06 No 4% of gross rev.
Flagstaff
113 Park Forest Office 20,095.15 9.7500 81 297 8/1/03 No 0.20 per sq. ft.
Building
114 Sims Creek Plaza 11,911.23 8.7400 113 293 4/1/06 No 0.30 per sq. ft.
115 163 / 174 Newbury 13,368.38 9.6250 116 296 7/1/06 No 0.20 per sq. ft.
Street
116 61-65 Brookline 57,021.65 9.6250 116 326 7/1/06 No 0.28 per sq. ft.
Avenue
117 Logan Healthcare 5,559.13 9.6250 80 296 7/1/03 No 0.20 per sq. ft.
Management Plaza
118 415 Hamburg 72,875.81 9.0000 118 298 9/1/06 No 0.23 per sq. ft.
Turnpike
119 Lynnfield Shopping 15,057.12 9.5000 116 326 7/1/06 No 0.23 per sq. ft.
Centre
120 SMC 316 28,962.41 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
121 SMC 202 29,354.07 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
122 SMC 452 28,962.41 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
125 SMC 343 28,581.05 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
126 SMC 309 27,808.04 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
127 SMC 441 28,189.39 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
128 SMC 214 23,561.59 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
111 Cor-West Plaza 9.2550 0.0400 0.0750 First Union
Shopping Center
112 Days Inn - 10.2550 0.0400 0.0750 First Union
Flagstaff
113 Park Forest Office 9.6300 0.0400 0.0750 First Union
Building
114 Sims Creek Plaza 8.6200 0.0400 0.0750 First Union
115 163 / 174 Newbury 9.5050 0.0400 0.0750 First Union
Street
116 61-65 Brookline 9.5050 0.0400 0.0750 First Union
Avenue
117 Logan Healthcare 9.5050 0.0400 0.0750 First Union
Management Plaza
118 415 Hamburg 8.8800 0.0400 0.0750 First Union
Turnpike
119 Lynnfield Shopping 9.3800 0.0400 0.0750 First Union
Centre
120 SMC 316 9.1550 0.0400 0.0750 First Union
121 SMC 202 9.1550 0.0400 0.0750 First Union
122 SMC 452 9.1550 0.0400 0.0750 First Union
125 SMC 343 9.1550 0.0400 0.0750 First Union
126 SMC 309 9.1550 0.0400 0.0750 First Union
127 SMC 441 9.1550 0.0400 0.0750 First Union
128 SMC 214 9.1550 0.0400 0.0750 First Union
-19-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
130 SMC 532 7368 Nankin Road Westland MI 2,660,000 2,660,000.00
131 SMC 389 4701 Capitol Blvd Raleigh NC 2,848,000 2,848,000.00
132 SMC 190 5537 N.W. Expressway Warr Acres OK 2,398,000 2,398,000.00
133 SMC 259 9333 Kingston Pike Knoxville TN 2,735,000 2,735,000.00
134 SMC 359 11250 N. Central Dallas TX 2,885,000 2,885,000.00
Expressway
135 SMC 353 17727 Tomball Parkway Houston TX 3,110,000 3,110,000.00
136 SMC 042 2665 HWY 6 South Houston TX 2,585,000 2,585,000.00
137 SMC 276 600 E. Expressway 83 McAllen TX 3,073,000 3,073,000.00
138 SMC 440 1300 E. Beltline Road Richardson TX 2,286,000 2,286,000.00
139 SMC 277 6161 Northwest Loop 410 San Antonio TX 2,623,000 2,623,000.00
140 SMC 360 9860 West Broad St. Glen Allen VA 3,447,000 3,447,000.00
141 SMC 348 1300 Huguenot Road Midlothian VA 3,220,000 3,220,000.00
142 Sigo Shopping 205 East Oneida Street Oswego NY 2,100,000 2,098,631.51
Center
145 Intelligent 5025 Tuggle Road Memphis TN 38118 11,250,000 11,244,167.76
Electronics
146 Allflex USA, Inc. 2805 E. 12th Street Irving TX 75063 1,100,000 1,097,190.10
147 Flagler 251 255 East Flagler Street Miami FL 33131 10,800,000 10,800,000.00
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
130 SMC 532 27,416.37 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
131 SMC 389 29,354.07 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
132 SMC 190 24,715.96 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
133 SMC 259 28,189.39 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
134 SMC 359 29,735.43 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
135 SMC 353 32,054.48 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
136 SMC 042 26,643.36 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
137 SMC 276 31,673.13 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
138 SMC 440 23,561.59 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
139 SMC 277 27,035.02 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
140 SMC 360 35,527.91 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
141 SMC 348 33,188.24 9.2750 180 180 11/1/11 No 0.10 per sq. ft.
142 Sigo Shopping 18,212.24 9.6250 119 323 10/1/06 No 0.12 per sq. ft.
Center
145 Intelligent 92,550.99 9.2500 119 359 10/1/06 No 0.05 per sq. ft.
Electronics
146 Allflex USA, Inc. 11,403.65 9.3750 179 179 10/1/11 Yes 0.22 per sq. ft.
147 Flagler 251 89,710.55 8.8750 84 300 11/1/03 No 0.15 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
130 SMC 532 9.1550 0.0400 0.0750 First Union
131 SMC 389 9.1550 0.0400 0.0750 First Union
132 SMC 190 9.1550 0.0400 0.0750 First Union
133 SMC 259 9.1550 0.0400 0.0750 First Union
134 SMC 359 9.1550 0.0400 0.0750 First Union
135 SMC 353 9.1550 0.0400 0.0750 First Union
136 SMC 042 9.1550 0.0400 0.0750 First Union
137 SMC 276 9.1550 0.0400 0.0750 First Union
138 SMC 440 9.1550 0.0400 0.0750 First Union
139 SMC 277 9.1550 0.0400 0.0750 First Union
140 SMC 360 9.1550 0.0400 0.0750 First Union
141 SMC 348 9.1550 0.0400 0.0750 First Union
142 Sigo Shopping 9.5050 0.0400 0.0750 First Union
Center
145 Intelligent 9.1300 0.0400 0.0750 First Union
Electronics
146 Allflex USA, Inc. 9.2550 0.0400 0.0750 First Union
147 Flagler 251 8.7550 0.0400 0.0750 First Union
-20-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
148 Rivers Park 8085 Rivers Avenue North Charleston SC 29406 3,000,000 3,000,000.00
Business Center -
Phase II
149 Normandy Village 7764 Normandy Boulevard Jacksonville FL 2,550,000 2,550,000.00
150 Pelham 6 6 Logue Court Greenville SC 1,750,000 1,750,000.00
151 Kings Court 901 S. Kings Drive Charlotte NC 28204 1,950,000 1,948,734.80
Shopping Center
152 The Port Authority 241 Erie Street Jersey City NJ 07310 17,000,000 16,975,344.30
of NY/NJ Technical
Center
153 Best Buy 14401 Township Road 212 Findlay OH 45840 18,375,000 18,365,221.50
Distribution Center
155 Willow Wood Shoppes 1141-1187 Wantagh Ave. Wantagh NY 6,098,000 6,098,000.00
156 Comfort Inn - Mt. 2136 Rockford Street Mount Airy NC 2,600,000 2,596,631.23
Airy
158 Palmdale 4500 Avenue S Palmdale CA 2,642,000 2,639,643.43
Marketplace
159 Reston 11800, 11840 & Reston VA 10,650,000 10,631,616.04
International 11816-11832 Sunrise
Center Valley Drive
160 Shaw Butte Center Corner of N. 7th Phoenix AZ 1,410,000 1,408,843.38
Street & Thunderbird
Road
161 Valli Hi Shopping SE Corner of South Colorado Springs CO 1,870,000 1,868,400.24
Center Circle Dr. & Airport
Rd.
163 7 Star Mobile Home 170 Koontz Lane Carson City NV 3,700,000 3,693,905.75
Park
164 501 Route 17 South 501 Route 17 South Paramus NJ 07652 6,591,000 6,586,839.35
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
148 Rivers Park 30,539.64 9.0625 120 180 11/1/06 No 0.10 per sq. ft.
Business Center -
Phase II
149 Normandy Village 21,399.51 9.0000 120 300 11/1/06 No 0.10 per sq. ft.
150 Pelham 6 14,911.28 9.1875 120 300 11/1/06 No 0.10 per sq. ft.
151 Kings Court 16,499.57 9.3750 119 329 10/1/06 No 0.15 per sq. ft.
Shopping Center
152 The Port Authority 155,697.36 9.2500 239 239 10/1/16 No 0.14 per sq. ft.
of NY/NJ Technical
Center
153 Best Buy 149,505.06 9.1250 119 359 10/1/06 No 0.05 per sq. ft.
Distribution Center
155 Willow Wood Shoppes 49,615.34 9.1250 84 360 11/1/03 No 0.26 per sq. ft.
156 Comfort Inn - Mt. 25,306.27 10.1250 119 239 10/1/06 No 4% of gross rev.
Airy
158 Palmdale 22,171.57 9.0000 83 299 10/1/03 No 0.14 per sq. ft.
Marketplace
159 Reston 90,984.30 9.2200 82 298 9/1/03 No 0.10 per sq. ft.
International
Center
160 Shaw Butte Center 12,319.12 9.5000 83 299 10/1/03 No 0.18 per sq. ft.
161 Valli Hi Shopping 16,014.34 9.2500 119 299 10/1/06 No 0.20 per sq. ft.
Center
163 7 Star Mobile Home 32,326.78 9.5000 118 298 9/1/06 No 31 per pad
Park
164 501 Route 17 South 56,449.25 9.5200 119 329 10/1/06 No 0.29 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
148 Rivers Park 8.9425 0.0400 0.0750 First Union
Business Center -
Phase II
149 Normandy Village 8.8800 0.0400 0.0750 First Union
150 Pelham 6 9.0675 0.0400 0.0750 First Union
151 Kings Court 9.2550 0.0400 0.0750 First Union
Shopping Center
152 The Port Authority 9.1300 0.0400 0.0750 First Union
of NY/NJ Technical
Center
153 Best Buy 9.0050 0.0400 0.0750 Key Corp
Distribution Center
155 Willow Wood Shoppes 9.0050 0.0400 0.0750 First Union
156 Comfort Inn - Mt. 10.0050 0.0400 0.0750 First Union
Airy
158 Palmdale 8.8800 0.0400 0.0750 First Union
Marketplace
159 Reston 9.1000 0.0400 0.0750 First Union
International
Center
160 Shaw Butte Center 9.3800 0.0400 0.0750 First Union
161 Valli Hi Shopping 9.1300 0.0400 0.0750 First Union
Center
163 7 Star Mobile Home 9.3800 0.0400 0.0750 First Union
Park
164 501 Route 17 South 9.4000 0.0400 0.0750 First Union
-21-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
165 Las Villas del 1325 Las Villas Way Escondido CA 92026 9,233,000 9,226,041.33
Norte
168 Comfort Inn - 600 Fairview Rd. / Simpsonville SC 2,500,000 2,500,000.00
Simpsonville I-385, Exit 27
171 Charlotte Square 2150 US 41 Port Charlotte FL 3,940,000 3,934,683.15
172 Tamarac Town Square 8177 North Pine Island Tamarac FL 6,635,000 6,628,003.22
Road
173 Riverside Square 8190 Wiles Road Coral Springs FL 8,225,000 8,216,326.52
174 Countryside Lakes 941 Village Trail Port Orange FL 32119 6,800,000 6,788,562.33
175 Village Shopping 19609 NW 57th Ave. Miami FL 33055 2,000,000 1,996,564.87
Center
176 Woodland Park West 21711 Ventura Boulevard Woodland Hills CA 4,375,000 4,371,559.61
Retirement Hotel
144 Tarzana Town Plaza 18607 Ventura Boulevard Tarzana CA 2,973,000 2,973,000.00
201 JMA - Ashford On 2700 S. Dairy Ashford Houston TX 77082 3,450,000 3,444,409.56
The Green Apts.
202 Belmont Square 2020 Jerry Murphy Road Pueblo CO 81001 3,320,300 3,313,276.46
Apts.
203 JMA - Brookmore 810 Brooks Avenue Rosenburg TX 77471 1,811,661 1,808,761.78
Hollow Apartments
205 Capital Tech Center 1611 N. Stemmons Carrollton TX 75006 1,253,800 1,247,389.50
Freeway
206 Clinton Industrial 7100-7251 Clinton Drive Houston TX 77020 1,762,500 1,753,030.20
Park
207 26 Court Street 26 Court Street Brooklyn NY 11242 9,500,000 9,409,634.76
209 Crosby Creek 1300 E. Crosby Road Carrollton TX 75006 2,400,000 2,388,936.09
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
165 Las Villas del 83,900.34 10.0000 119 299 10/1/06 No 250 per unit
Norte
168 Comfort Inn - 26,105.62 9.5000 180 180 11/1/11 No 4% of gross rev.
Simpsonville
171 Charlotte Square 32,813.91 9.1875 171 328 2/1/11 No 0.22 per sq. ft.
172 Tamarac Town Square 54,284.27 9.1875 155 358 10/1/09 No 0.22 per sq. ft.
173 Riverside Square 67,292.86 9.1875 184 358 3/1/12 No 0.10 per sq. ft.
174 Countryside Lakes 58,821.58 9.3750 118 298 9/1/06 No 292 per unit
175 Village Shopping 17,127.64 9.2500 118 298 9/1/06 No 0.26 per sq. ft.
Center
176 Woodland Park West 38,987.26 9.7500 119 299 10/1/06 No 225 per unit
Retirement Hotel
144 Tarzana Town Plaza 26,085.69 9.8125 120 330 11/1/06 No 0.11 per sq. ft.
201 JMA - Ashford On 27,983.19 9.0900 117 357 8/1/06 No 250 per unit
The Green Apts.
202 Belmont Square 27,219.10 9.2100 116 356 7/1/06 No 250 per unit
Apts.
203 JMA - Brookmore 14,772.99 9.1500 117 357 8/1/06 No 250 per unit
Hollow Apartments
205 Capital Tech Center 10,858.69 9.3900 54 294 5/1/01 No 0.15 per sq. ft.
206 Clinton Industrial 14,899.61 9.0900 114 294 5/1/06 No 0.15 per sq. ft.
Park
207 26 Court Street 91,362.57 9.9500 233 233 4/1/16 No 0.21 per sq. ft.
209 Crosby Creek 19,960.24 8.8900 115 295 6/1/06 No 250 per unit
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
165 Las Villas del 9.8800 0.0400 0.0750 First Union
Norte
168 Comfort Inn - 9.3800 0.0400 0.0750 First Union
Simpsonville
171 Charlotte Square 9.0675 0.0400 0.0750 First Union
172 Tamarac Town Square 9.0675 0.0400 0.0750 First Union
173 Riverside Square 9.0675 0.0400 0.0750 First Union
174 Countryside Lakes 9.2550 0.0400 0.0750 First Union
175 Village Shopping 9.1300 0.0400 0.0750 First Union
Center
176 Woodland Park West 9.6300 0.0400 0.0750 First Union
Retirement Hotel
144 Tarzana Town Plaza 9.6925 0.0400 0.0750 First Union
201 JMA - Ashford On 8.9500 0.0600 0.0750 LJ Melody
The Green Apts.
202 Belmont Square 9.0900 0.0400 0.0750 First Union
Apts.
203 JMA - Brookmore 9.0100 0.0600 0.0750 LJ Melody
Hollow Apartments
205 Capital Tech Center 9.2700 0.0400 0.0750 First Union
206 Clinton Industrial 8.9700 0.0400 0.0750 First Union
Park
207 26 Court Street 9.8100 0.0600 0.0750 Key Corp
209 Crosby Creek 8.7700 0.0400 0.0750 First Union
-22-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
210 INT-Deer Creek 16303 Imperial Valley Houston TX 77060 3,326,100 3,315,902.31
Apartments Drive
211 First Line 1120 Red Bluff Road Pasadena TX 77506 1,350,000 1,343,857.96
Apartments
212 Fountainview Lodge 6015 Winsome & 6100 Houston TX 77057 1,971,700 1,963,141.63
I & II Apts. Fairdale
213 Friendship Square 1115 - 1195 Bridge Brighton CO 80601 1,175,000 1,167,533.30
Street
214 Fountain Square 544 Camp Avenue Gulfport MS 39501 1,800,000 1,791,971.16
Apartments
215 INT-6200 Gessner 8721 Town Park Drive Houston TX 77036 10,000,000 9,969,340.40
Apartments
217 Lakewood Village 200 E. Lakewood Drive Nacogdoches TX 75961 1,120,000 1,114,870.71
Apartments
218 INT-The Lodge 7600 Kirby Houston TX 77030 4,553,500 4,539,539.15
Apartments
219 Mount View 20-90 Mount View Lane Colorado Springs CO 80907 1,771,400 1,761,866.69
Business Park
221 Pecos Trail Office 1660 Old Pecos Trail Santa Fe NM 87501 1,468,300 1,463,764.55
Compound
223 Ralston Plaza Ward Rd. & 64th Ave. Arvada CO 80002 2,461,100 2,449,308.85
224 INT-Regency Walk 10301 Sandpiper Houston TX 77096 4,360,000 4,346,632.41
Apartments
225 Southgate 801A Southgate Drive State College PA 16801 3,300,000 3,294,596.76
Apartments &
Townhouses
228 Shafer Plaza 8383 Westheimer Houston TX 77063 6,500,000 6,482,638.88
Shopping Center
229 Shiloh Road 1717 Shiloh Road Tyler TX 75703 3,320,000 3,310,525.88
Apartments
230 Silvercreek II 4619 W. 34th Street Houston TX 77092 1,500,000 1,488,771.26
Apartments
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
210 INT-Deer Creek 25,598.41 8.5100 55 355 6/1/01 No 225 per unit
Apartments
211 First Line 11,301.43 8.9700 115 295 6/1/06 No 250 per unit
Apartments
212 Fountainview Lodge 15,146.70 8.4900 113 353 4/1/06 No 250 per unit
I & II Apts.
213 Friendship Square 9,884.71 9.0300 113 293 4/1/06 No 0.16 per sq. ft.
214 Fountain Square 15,216.62 9.0900 175 295 6/1/11 No 250 per unit
Apartments
215 INT-6200 Gessner 76,962.23 8.5100 55 355 6/1/01 No 225 per unit
Apartments
217 Lakewood Village 9,345.37 8.9300 79 295 6/1/03 No 250 per unit
Apartments
218 INT-The Lodge 35,044.75 8.5100 55 355 6/1/01 No 225 per unit
Apartments
219 Mount View 14,962.69 9.0800 78 294 5/1/03 No 0.16 per sq. ft.
Business Park
221 Pecos Trail Office 13,270.07 9.9300 116 296 7/1/06 No 0.15 per sq. ft.
Compound
223 Ralston Plaza 21,983.50 9.7800 114 294 5/1/06 No 0.16 per sq. ft.
224 INT-Regency Walk 33,555.53 8.5100 55 355 6/1/01 No 225 per unit
Apartments
225 Southgate 26,647.58 9.0400 117 357 8/1/06 No 275 per unit
Apartments &
Townhouses
228 Shafer Plaza 53,144.50 9.1800 115 355 6/1/06 No 0.15 per sq. ft.
Shopping Center
229 Shiloh Road 26,379.72 8.8600 55 355 6/1/01 No 225 per unit
Apartments
230 Silvercreek II 13,611.87 9.1200 235 235 6/1/16 No 250 per unit
Apartments
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
210 INT-Deer Creek 8.3900 0.0400 0.0750 First Union
Apartments
211 First Line 8.8500 0.0400 0.0750 First Union
Apartments
212 Fountainview Lodge 8.3500 0.0600 0.0750 LJ Melody
I & II Apts.
213 Friendship Square 8.8900 0.0600 0.0750 LJ Melody
214 Fountain Square 8.9700 0.0400 0.0750 First Union
Apartments
215 INT-6200 Gessner 8.3900 0.0400 0.0750 First Union
Apartments
217 Lakewood Village 8.8100 0.0400 0.0750 First Union
Apartments
218 INT-The Lodge 8.3900 0.0400 0.0750 First Union
Apartments
219 Mount View 8.9600 0.0400 0.0750 First Union
Business Park
221 Pecos Trail Office 9.8100 0.0400 0.0750 First Union
Compound
223 Ralston Plaza 9.6600 0.0400 0.0750 First Union
224 INT-Regency Walk 8.3900 0.0400 0.0750 First Union
Apartments
225 Southgate 8.9200 0.0400 0.0750 First Union
Apartments &
Townhouses
228 Shafer Plaza 9.0400 0.0600 0.0750 LJ Melody
Shopping Center
229 Shiloh Road 8.7400 0.0400 0.0750 First Union
Apartments
230 Silvercreek II 9.0000 0.0400 0.0750 First Union
Apartments
-23-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
235 BCM-Westheimer 5820 Berkman Drive Austin TX 78723 720,000 718,140.97
Court Apts.
237 Westheimer House 5800 Wellington Drive Austin TX 78723 1,200,000 1,196,901.62
238 Woodwillow 3601 Willow Springs Austin TX 78704 1,431,000 1,427,922.18
Townhomes Road
239 Timbergrove Manor 1600 West T. C. Jester Houston TX 77008 1,405,000 1,402,713.83
Apts. Blvd
242 JMA - Woodcreek 3023 Woodcreek Lane Houston TX 77345 820,000 818,671.26
Village Apartments
244 SHL - San Antonio 7458 Louis Pasteur San Antonio TX 78229 3,030,000 3,024,633.39
Station Apts.
245 SHL - Village 2305 Bay Area Bldv. Houston TX 77058 4,900,000 4,891,321.32
Green Apartments
247 Buckingham Manor 1110 & 1160 S. Joliet Aurora CO 80012 1,454,300 1,449,069.93
248 Westec Plaza 625 Digital Drive Plano TX 75075 896,000 893,751.32
249 Marigold I 2303 Goliad Road San Antonio TX 78223 2,095,200 2,087,751.86
Apartments
250 Belfonti-Stonebridge 157-161 Pinney Street Ellington CT 06029 1,450,000 1,444,802.61
Apartments
251 Glenbrook Townhomes 600 West Pioneer Arlington TX 76010 2,500,000 2,493,359.85
Parkway
252 Belfonti-Greenbriar 110 Falls Terrace Watertown CT 06779 4,350,000 4,334,407.84
Hills Apartments
253 Wilshire Villa 4245 5th Avenue South Lake Charles LA 70605 2,400,000 2,397,569.11
Apartments
254 Colinas Business 4320 North Belt Line Irving TX 75038 1,670,000 1,667,263.19
Park Road
255 Grayridge 5625 Bissonnet Street Houston TX 77081 1,225,000 1,222,721.30
Apartments
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
235 BCM-Westheimer 6,170.92 9.2600 117 297 8/1/06 No 290 per unit
Court Apts.
237 Westheimer House 10,284.86 9.2600 117 297 8/1/06 No 296 per unit
238 Woodwillow 11,648.26 9.1300 80 356 7/1/03 No 250 per unit
Townhomes
239 Timbergrove Manor 11,375.79 9.0700 117 357 8/1/06 No 250 per unit
Apts.
242 JMA - Woodcreek 6,651.08 9.0900 117 357 8/1/06 No 250 per unit
Village Apartments
244 SHL - San Antonio 23,642.52 8.6600 45 357 8/1/00 No 250 per unit
Station Apts.
245 SHL - Village 38,233.78 8.6600 45 357 8/1/00 No 225 per unit
Green Apartments
247 Buckingham Manor 12,224.36 9.0200 56 296 7/1/01 No 250 per unit
248 Westec Plaza 7,784.77 9.4300 57 297 8/1/01 No 0.15 per sq. ft.
249 Marigold I 17,712.15 9.0900 80 296 7/1/03 No 250 per unit
Apartments
250 Belfonti-Stonebridge 12,208.09 9.0400 116 296 7/1/06 No 250 per unit
Apartments
251 Glenbrook Townhomes 21,134.20 9.0900 117 297 8/1/06 No 280 per unit
252 Belfonti-Greenbriar 36,624.27 9.0400 116 296 7/1/06 No 250 per unit
Hills Apartments
253 Wilshire Villa 19,970.71 9.3800 118 358 9/1/06 No 250 per unit
Apartments
254 Colinas Business 14,625.58 9.5300 58 298 9/1/01 No 0.15 per sq. ft.
Park
255 Grayridge 10,087.91 8.7700 118 298 9/1/06 No 225 per unit
Apartments
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
235 BCM-Westheimer 9.1400 0.0400 0.0750 First Union
Court Apts.
237 Westheimer House 9.1400 0.0400 0.0750 First Union
238 Woodwillow 9.0100 0.0400 0.0750 First Union
Townhomes
239 Timbergrove Manor 8.9500 0.0400 0.0750 First Union
Apts.
242 JMA - Woodcreek 8.9500 0.0600 0.0750 LJ Melody
Village Apartments
244 SHL - San Antonio 8.5400 0.0400 0.0750 First Union
Station Apts.
245 SHL - Village 8.5400 0.0400 0.0750 First Union
Green Apartments
247 Buckingham Manor 8.9000 0.0400 0.0750 First Union
248 Westec Plaza 9.3100 0.0400 0.0750 First Union
249 Marigold I 8.9700 0.0400 0.0750 First Union
Apartments
250 Belfonti-Stonebridge 8.9200 0.0400 0.0750 First Union
Apartments
251 Glenbrook Townhomes 8.9700 0.0400 0.0750 First Union
252 Belfonti-Greenbriar 8.9200 0.0400 0.0750 First Union
Hills Apartments
253 Wilshire Villa 9.2600 0.0400 0.0750 First Union
Apartments
254 Colinas Business 9.4100 0.0400 0.0750 First Union
Park
255 Grayridge 8.6300 0.0600 0.0750 LJ Melody
Apartments
-24-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
256 Bay Towers 1203 Market Street Pascagoula MS 39567 1,550,000 1,543,761.39
258 Berkeley Heights 396 Springfield Avenue Berkeley Heights NJ 07922 2,500,000 2,492,720.38
Grand Union
261 Coca-Cola 2540 W. Pennway Kansas City MO 64108 1,950,000 1,946,542.95
Building-Industrial
260 Homestead Lodge 13300 York Center Drive Charlotte NC 28273 2,100,000 2,094,256.70
269 Cordele Corners 1411 East 16th Avenue Cordele GA 31015 2,175,000 2,171,066.42
Shopping Center
259 College Park S.R. 696 (North Earl Shippensburg PA 17257 2,100,000 2,096,270.83
Apartments Street)
284 Rodeo Square 6700 Dairy Ashford Houston TX 77072 6,960,000 6,951,379.74
Apartments
282 Super 8 Motel 3617 N. Pan Am San Antonio TX 78219 1,650,000 1,645,658.69
Expressway (aka I-35)
265 Oxford-Runaway Bay 8242 Runaway Bay Drive Charlotte NC 28212 9,259,000 9,247,508.82
Apartments
263 Oxford-Runaway Bay 1480 Runaway Bay Drive Columbus OH 43204 4,522,000 4,516,387.83
II Apartments
264 Oxford - Hunters 2550 Steeple Chase Miamisburg OH 45342 9,081,000 9,069,729.74
Chase Apartments Drive
266 Oxford - Island 2225 Montego Blvd Columbus OH 43235 10,120,000 10,107,440.25
Club Apartments
267 Oxford-Oaks at 3800 Woodbridge Blvd Fairfield OH 45014 11,070,000 11,056,261.22
Woodbridge I Apts
281 Cedar Grove Mobile 1A Whippoorwill Way Mantua NJ 08051 2,430,000 2,425,619.80
Home Park
279 American Trade 6627 Maple Avenue Dallas TX 75226 1,425,000 1,421,440.19
Institute
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
256 Bay Towers 14,875.77 9.9200 237 237 8/1/16 No 250 per unit
258 Berkeley Heights 22,896.67 9.2500 118 238 9/1/06 Yes 0.22 per sq. ft.
Grand Union
261 Coca-Cola 16,444.52 9.0600 118 298 9/1/06 No 0.15 per sq. ft.
Building-Industrial
260 Homestead Lodge 19,905.04 9.7400 238 238 9/1/16 No 4% of gross rev.
269 Cordele Corners 18,163.24 8.9400 178 298 9/1/11 No 0.24 per sq. ft.
Shopping Center
259 College Park 17,695.08 9.0500 118 298 9/1/06 No 325 per unit
Apartments
284 Rodeo Square 53,073.08 8.4100 34 358 9/1/99 No 250 per unit
Apartments
282 Super 8 Motel 15,966.61 10.0400 238 238 9/1/16 No 4% of gross rev.
265 Oxford-Runaway Bay 70,538.55 8.4000 118 358 9/1/06 No 254 per unit
Apartments
263 Oxford-Runaway Bay 34,450.30 8.4000 118 358 9/1/06 No 284 per unit
II Apartments
264 Oxford - Hunters 69,182.48 8.4000 118 358 9/1/06 No 250 per unit
Chase Apartments
266 Oxford - Island 77,097.97 8.4000 118 358 9/1/06 No 250 per unit
Club Apartments
267 Oxford-Oaks at 84,335.43 8.4000 118 358 9/1/06 No 250 per unit
Woodbridge I Apts
281 Cedar Grove Mobile 20,325.95 8.9600 178 298 9/1/11 No 50 per pad
Home Park
279 American Trade 14,983.56 9.6200 179 179 10/1/11 No 0.15 per sq. ft.
Institute
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
256 Bay Towers 9.8000 0.0400 0.0750 First Union
258 Berkeley Heights 9.1300 0.0400 0.0750 First Union
Grand Union
261 Coca-Cola 8.9400 0.0400 0.0750 First Union
Building-Industrial
260 Homestead Lodge 9.6200 0.0400 0.0750 First Union
269 Cordele Corners 8.8200 0.0400 0.0750 First Union
Shopping Center
259 College Park 8.9300 0.0400 0.0750 First Union
Apartments
284 Rodeo Square 8.2900 0.0400 0.0750 First Union
Apartments
282 Super 8 Motel 9.9200 0.0400 0.0750 First Union
265 Oxford-Runaway Bay 8.2800 0.0400 0.0750 First Union
Apartments
263 Oxford-Runaway Bay 8.2800 0.0400 0.0750 First Union
II Apartments
264 Oxford - Hunters 8.2800 0.0400 0.0750 First Union
Chase Apartments
266 Oxford - Island 8.2800 0.0400 0.0750 First Union
Club Apartments
267 Oxford-Oaks at 8.2800 0.0400 0.0750 First Union
Woodbridge I Apts
281 Cedar Grove Mobile 8.8400 0.0400 0.0750 First Union
Home Park
279 American Trade 9.5000 0.0400 0.0750 First Union
Institute
-25-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
285 Copper Tree 350 Ramapo Valley Road Oakland NJ 07436 9,000,000 8,990,151.56
Shopping Plaza
286 Las Colinas Tech 2039 Walnut Hill Lane Irving TX 75038 1,400,000 1,397,777.97
Center
274 KFS-Sunset Pointe 465 West Clemmens Lane Fallbrook CA 92028 3,000,000 2,996,374.72
Apartments
222 Pinecrest 2035 E. Pinetree Thomasville GA 31792 1,085,000 1,080,421.65
Apartments Boulevard
277 KFS-Sycamore Ridge 820 Sycamore Avenue Vista CA 92083 11,468,600 11,454,741.05
Apartments
273 KFS-Sunset Terrace 1456 Alturas Street Fallbrook CA 92028 2,442,400 2,439,448.54
Apartments
276 KFS-Sunset Village 3634 College Boulevard Oceanside CA 92056 5,650,000 5,643,172.40
Apartments
232 EW - Sorrento 10350-60 Sorrento San Diego CA 92121 2,450,000 2,445,213.34
Creek Industrial Valley Road
Park
233 EW - Sorrento 10635-37-39 Roselle San Diego CA 92121 1,600,000 1,596,807.73
Roselle Industrial Street
Park
231 Solarium Apartments 9275 LBJ Freeway Dallas TX 75243 1,500,000 1,480,738.65
272 KFS-Sunset Trails 959 Postal Way Vista CA 92083 1,700,000 1,698,147.46
Apartments
278 KFS-Sunset 910-975 Del Dios Escondido CA 92083 14,039,000 14,022,034.92
Apartments Highway
208 Courtyard 15025 Saticoy Street Van Nuys CA 91405 1,050,000 1,047,918.21
Apartments
332 Summer Street 1111 & 1177 Summer Stamford CT 06905 7,620,000 7,613,822.65
Office Building Street
335 Cooper Park 812 Cooper Square Arlington TX 76013 2,920,000 2,918,470.27
Apartments Circle
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
285 Copper Tree 72,480.80 9.0100 118 358 9/1/06 No 0.15 per sq. ft.
Shopping Plaza
286 Las Colinas Tech 12,446.53 9.7200 238 298 9/1/16 No 0.04 per sq. ft.
Center
274 KFS-Sunset Pointe 23,131.22 8.5300 82 358 9/1/03 No 200 per unit
Apartments
222 Pinecrest 9,549.15 9.3100 272 272 7/1/19 No 268 per unit
Apartments
277 KFS-Sycamore Ridge 88,427.56 8.5300 82 358 9/1/03 No 200 per unit
Apartments
273 KFS-Sunset Terrace 18,831.90 8.5300 82 358 9/1/03 No 200 per unit
Apartments
276 KFS-Sunset Village 43,563.79 8.5300 82 358 9/1/03 No 220 per unit
Apartments
232 EW - Sorrento 20,762.00 9.5900 116 356 7/1/06 No 0.15 per sq. ft.
Creek Industrial
Park
233 EW - Sorrento 13,442.00 9.4900 116 356 7/1/06 No 0.15 per sq. ft.
Roselle Industrial
Park
231 Solarium Apartments 15,654.32 9.4900 175 175 6/1/11 No 250 per unit
272 KFS-Sunset Trails 13,715.30 9.0300 118 358 9/1/06 No 200 per unit
Apartments
278 KFS-Sunset 108,246.39 8.5300 82 358 9/1/03 No 200 per unit
Apartments
208 Courtyard 8,844.30 9.5200 116 356 7/1/06 No 225 per unit
Apartments
332 Summer Street 66,946.85 9.5700 119 299 10/1/06 No 0.15 per sq. ft.
Office Building
335 Cooper Park 23,916.40 9.2000 239 359 10/1/16 No 269 per unit
Apartments
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
285 Copper Tree 8.8900 0.0400 0.0750 First Union
Shopping Plaza
286 Las Colinas Tech 9.6000 0.0400 0.0750 First Union
Center
274 KFS-Sunset Pointe 8.3900 0.0600 0.0750 LJ Melody
Apartments
222 Pinecrest 9.1900 0.0400 0.0750 First Union
Apartments
277 KFS-Sycamore Ridge 8.3900 0.0600 0.0750 LJ Melody
Apartments
273 KFS-Sunset Terrace 8.3900 0.0600 0.0750 LJ Melody
Apartments
276 KFS-Sunset Village 8.3900 0.0600 0.0750 LJ Melody
Apartments
232 EW - Sorrento 9.4500 0.0600 0.0750 LJ Melody
Creek Industrial
Park
233 EW - Sorrento 9.3500 0.0600 0.0750 LJ Melody
Roselle Industrial
Park
231 Solarium Apartments 9.3700 0.0400 0.0750 First Union
272 KFS-Sunset Trails 8.8900 0.0600 0.0750 LJ Melody
Apartments
278 KFS-Sunset 8.3900 0.0600 0.0750 LJ Melody
Apartments
208 Courtyard 9.3800 0.0600 0.0750 LJ Melody
Apartments
332 Summer Street 9.4500 0.0400 0.0750 First Union
Office Building
335 Cooper Park 9.0800 0.0400 0.0750 First Union
Apartments
-26-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
356 Prospect Plaza 401 Jefferson Street Frederick MD 21701 4,155,000 4,151,721.53
339 Twin Parks Estates 800 West Harris Road Arlington TX 76017 2,320,000 2,318,071.10
262 22601 Pacific 22601 Pacific Coast Malibu CA 90265 2,450,000 2,439,960.03
Coast Highway Ctr Highway
227 Seneca Village 3201 East Seneca St. Tucson AZ 85716 3,000,000 2,995,138.75
Apartments
257 Pioneer Point 216 W. Pioneer Parkway Arlington TX 76010 1,200,000 1,195,825.18
Apartments
241 Renaissance III NWC of Pecos & Flamingo Las Vegas NV 89104 17,280,000 17,246,477.80
Shopping Center
226 Scripps Mesa 9961 Erma Road San Diego CA 92131 2,573,700 2,565,937.07
Apartments
319 Enfield Court 16541 Loch Katrine Road Houston TX 77084 1,350,000 1,349,215.22
Apartments
271 Gateway Retail 2500 Gateway Boulevard Federal Way WA 98003 12,750,000 12,725,848.52
Center South
200 AB - Sixty-Five 65 Madison Avenue Morristown NJ 07960 3,691,000 3,672,470.28
Madison Avenue
234 1212 Westheimer 1212 Westheimer Austin TX 78752 2,990,000 2,982,058.38
Apartments
236 AB - Westgate @ 9 Law Drive Fairfield NJ 07004 4,163,000 4,142,239.42
Fairfield
275 KFS-Citrus Sunset 1280 North Citrus Vista CA 92083 3,660,000 3,655,577.16
Apartments Avenue
304 The Olympic NWC Olympic and Santa Monica CA 90404 10,000,000 9,991,838.37
Marketplace Cloverfield
270 Vista Gardens 555 East Fruitvale Hemet CA 92543 2,150,000 2,147,676.51
Apartments
283 Pioneer Way 1035 Pioneer Way El Cajon CA 92020 2,900,000 2,894,789.93
Industrial Park
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
356 Prospect Plaza 36,968.60 9.7300 83 299 10/1/03 No 0.15 per sq. ft.
339 Twin Parks Estates 20,140.90 9.4200 119 299 10/1/06 No 50 per pad
262 22601 Pacific 21,576.12 9.6000 79 295 6/1/03 No 0.15 per sq. ft.
Coast Highway Ctr
227 Seneca Village 24,333.20 9.0900 117 357 8/1/06 No 250 per unit
Apartments
257 Pioneer Point 10,251.75 9.2200 116 296 7/1/06 No 265 per unit
Apartments
241 Renaissance III 143,137.11 9.1700 117 333 8/1/06 No 0.15 per sq. ft.
Shopping Center
226 Scripps Mesa 19,953.92 8.5900 55 355 6/1/01 No 276 per unit
Apartments
319 Enfield Court 10,572.28 8.7000 83 359 10/1/03 No 290 per unit
Apartments
271 Gateway Retail 104,044.82 8.6600 34 298 9/1/99 No 0.15 per sq. ft.
Center
200 AB - Sixty-Five 32,248.14 9.5000 114 294 5/1/06 Yes 0.26 per sq. ft.
Madison Avenue
234 1212 Westheimer 25,276.50 9.0900 117 297 8/1/06 No 309 per unit
Apartments
236 AB - Westgate @ 36,487.81 9.5400 114 294 5/1/06 No 0.15 per sq. ft.
Fairfield
275 KFS-Citrus Sunset 28,220.09 8.5300 82 358 9/1/03 No 225 per unit
Apartments
304 The Olympic 87,578.30 9.5300 239 299 10/1/16 No 0.15 per sq. ft.
Marketplace
270 Vista Gardens 17,407.79 9.0700 82 358 9/1/03 No 175 per unit
Apartments
283 Pioneer Way 24,296.99 8.9800 118 298 9/1/06 No 0.15 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
356 Prospect Plaza 9.6100 0.0400 0.0750 First Union
339 Twin Parks Estates 9.3000 0.0400 0.0750 First Union
262 22601 Pacific 9.4800 0.0400 0.0750 First Union
Coast Highway Ctr
227 Seneca Village 8.9500 0.0600 0.0750 LJ Melody
Apartments
257 Pioneer Point 9.1000 0.0400 0.0750 First Union
Apartments
241 Renaissance III 9.0300 0.0600 0.0750 LJ Melody
Shopping Center
226 Scripps Mesa 8.4500 0.0600 0.0750 LJ Melody
Apartments
319 Enfield Court 8.5800 0.0400 0.0750 First Union
Apartments
271 Gateway Retail 8.5400 0.0400 0.0750 First Union
Center
200 AB - Sixty-Five 9.3600 0.0600 0.0750 Key Corp
Madison Avenue
234 1212 Westheimer 8.9700 0.0400 0.0750 First Union
Apartments
236 AB - Westgate @ 9.4000 0.0600 0.0750 Key Corp
Fairfield
275 KFS-Citrus Sunset 8.3900 0.0600 0.0750 LJ Melody
Apartments
304 The Olympic 9.3900 0.0600 0.0750 LJ Melody
Marketplace
270 Vista Gardens 8.9300 0.0600 0.0750 LJ Melody
Apartments
283 Pioneer Way 8.8400 0.0600 0.0750 LJ Melody
-27-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
302 SNE Enterprises 1000 Southview Drive Mosinee WI 54455 9,975,000 9,966,776.06
240 West Palm 501-635 West Palm Orange CA 92666 3,735,000 3,721,788.44
Industrial Park Avenue
246 K&S - Pioneer 2901 West 63rd Avenue Denver CO 80221 1,870,000 1,866,925.42
Village MHP
243 K&S - North County 9700 North Riverdale Thornton CO 80229 8,430,000 8,415,069.13
Village
204 Canyon Center 19307 Soledad Canyon Santa Clarita CA 91351 13,300,000 13,246,070.99
Rd.
268 Paseo Plaza 2600 West Sahara Avenue Las Vegas NV 89102 5,333,400 5,311,064.50
220 P & K-Olive 6500 - 6502 W. Olive Glendale AZ 85302 1,850,000 1,843,706.44
Gardens Apartments Avenue
216 P&K-Glendale 5902 W. Royal Palm Rd Glendale AZ 85302 1,800,000 1,793,876.54
Shadows
280 Tiger Industrial 4901 & 4929 West Van Phoenix AZ 85043 1,800,000 1,796,755.35
Plaza Buren Street
307 Shilo Inn-Portland 11707 N.E. Airport Way Portland OR 97220-1075 14,750,000 14,729,334.62
Airport/I-205
299 Shilo Inn-Salem 3304 Market Street NE Salem OR 97301 5,470,000 5,462,336.30
Suites
303 Shilo Inn-Seaside 30 North Promenade Seaside OR 97138 9,510,000 9,496,676.08
Oceanfront Resort
300 Shilo Inn-Tacoma 7414 South Hosmer Tacoma WA 98408 6,770,000 6,760,514.94
Street
306 Collegetown Plaza 111-121 Dryden Road Ithaca NY 14850 7,000,000 6,996,152.45
326 The Branson Mall 2206 West State Hwy. 76 Branson MO 65616 3,300,000 3,300,000.00
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
302 SNE Enterprises 86,943.31 9.4700 119 299 10/1/06 No 0.15 per sq. ft.
240 West Palm 31,651.47 9.1200 116 296 7/1/06 No 0.15 per sq. ft.
Industrial Park
246 K&S - Pioneer 15,073.36 9.0200 81 357 8/1/03 No 79 per pad
Village MHP
243 K&S - North County 65,777.71 8.6600 57 357 8/1/01 No 50 per pad
Village
204 Canyon Center 111,039.16 9.0600 175 307 6/1/11 No 0.15 per sq. ft.
268 Paseo Plaza 46,486.56 9.4700 115 295 6/1/06 No 0.15 per sq. ft.
220 P & K-Olive 14,765.87 8.9100 114 354 5/1/06 No 327 per unit
Gardens Apartments
216 P&K-Glendale 14,366.80 8.9100 114 354 5/1/06 No 283 per unit
Shadows
280 Tiger Industrial 15,056.26 8.9600 118 298 9/1/06 No 0.15 per sq. ft.
Plaza
307 Shilo Inn-Portland 137,682.05 9.5200 239 239 10/1/16 No 4% of gross rev.
Airport/I-205
299 Shilo Inn-Salem 51,059.04 9.5200 239 239 10/1/16 No 4% of gross rev.
Suites
303 Shilo Inn-Seaside 88,769.92 9.5200 239 239 10/1/16 No 4% of gross rev.
Oceanfront Resort
300 Shilo Inn-Tacoma 63,193.73 9.5200 239 239 10/1/16 No 4% of gross rev.
306 Collegetown Plaza 56,172.55 8.9700 119 359 10/1/06 No 350 per unit
326 The Branson Mall 28,010.54 9.1400 120 300 11/1/06 No 0.15 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
302 SNE Enterprises 9.3500 0.0400 0.0750 First Union
240 West Palm 8.9800 0.0600 0.0750 LJ Melody
Industrial Park
246 K&S - Pioneer 8.8800 0.0600 0.0750 LJ Melody
Village MHP
243 K&S - North County 8.5200 0.0600 0.0750 LJ Melody
Village
204 Canyon Center 8.9200 0.0600 0.0750 LJ Melody
268 Paseo Plaza 9.3300 0.0600 0.0750 LJ Melody
220 P & K-Olive 8.7900 0.0400 0.0750 First Union
Gardens Apartments
216 P&K-Glendale 8.7900 0.0400 0.0750 First Union
Shadows
280 Tiger Industrial 8.8400 0.0400 0.0750 First Union
Plaza
307 Shilo Inn-Portland 9.3800 0.0600 0.0750 Key Corp
Airport/I-205
299 Shilo Inn-Salem 9.3800 0.0600 0.0750 Key Corp
Suites
303 Shilo Inn-Seaside 9.3800 0.0600 0.0750 Key Corp
Oceanfront Resort
300 Shilo Inn-Tacoma 9.3800 0.0600 0.0750 Key Corp
306 Collegetown Plaza 8.8500 0.0400 0.0750 First Union
326 The Branson Mall 9.0200 0.0400 0.0750 First Union
-28-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
325 CAP-Clubhouse 3 Clubhouse Circle Storrs CT 06268 1,571,500 1,570,031.59
Apartments
324 CAP-Knollwood Knollwood Acres Road Storrs CT 06268 3,828,000 3,824,422.80
Apartments
323 CAP-Maplewood 1 Carlton Road Storrs CT 06268 1,272,200 1,271,010.83
Apartments
322 CAP-Millbrook 170 Spring Hill Road Storrs CT 06268 436,000 435,592.13
Apartments
321 CAP-Oakwood 114 South Eagleville Storrs CT 06268 257,300 257,059.12
Apartments Road
293 JF Commons West 107 The Commons Ithaca NY 14850 2,200,000 2,198,139.89
350 Horwitz-Ramada Inn 13455 SW Canyon Road Beaverton OR 97005 4,900,000 4,900,000.00
- Beaverton
351 Horwitz-Ramada Inn 1550 NW 9th Street Corvallis OR 97330 5,750,000 5,750,000.00
- Corvallis
352 Horwitz-Ramada Inn 6221 NE 82nd Street Portland OR 97220 7,800,000 7,800,000.00
- Portland
353 Ramada Inn - 2200 Fifth Avenue Seattle WA 98121 7,850,000 7,850,000.00
Seattle
331 Holiday Inn Express 4100 Salida Blvd Modesto CA 95358 2,600,000 2,600,000.00
316 Howard Johnson - 2375 Delk Road Marietta GA 30067 2,500,000 2,500,000.00
Delk Road
338 Southgate/Meadowlark 6405 - 6601 Arden Road Amarillo TX 79109 1,520,000 1,518,664.41
Mobile Home Park
313 Parker Plaza West 2109 West Parker Road Plano TX 75080 3,500,000 3,500,000.00
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
325 CAP-Clubhouse 12,887.97 8.7200 83 299 10/1/03 No 270 per unit
Apartments
324 CAP-Knollwood 31,393.67 8.7200 83 299 10/1/03 No 280 per unit
Apartments
323 CAP-Maplewood 10,433.39 8.7200 83 299 10/1/03 No 270 per unit
Apartments
322 CAP-Millbrook 3,575.66 8.7200 83 299 10/1/03 No 270 per unit
Apartments
321 CAP-Oakwood 2,110.13 8.7200 83 299 10/1/03 No 271 per unit
Apartments
293 JF Commons West 18,946.78 9.3200 119 299 10/1/06 No 300 per unit
350 Horwitz-Ramada Inn 46,155.46 9.6500 240 240 11/1/16 No 4% of gross rev.
- Beaverton
351 Horwitz-Ramada Inn 53,324.77 9.6500 252 252 11/1/17 No 4% of gross rev.
- Corvallis
352 Horwitz-Ramada Inn 73,471.96 9.6500 240 240 11/1/16 No 4% of gross rev.
- Portland
353 Ramada Inn - 70,632.00 9.4300 264 264 11/1/18 No 4% of gross rev.
Seattle
331 Holiday Inn Express 25,297.63 10.1200 240 240 11/1/16 No 4% of gross rev.
316 Howard Johnson - 23,861.12 9.8400 180 240 11/1/11 No 4% of gross rev.
Delk Road
338 Southgate/Meadowlark 12,849.59 9.0900 59 299 10/1/01 No 50 per pad
Mobile Home Park
313 Parker Plaza West 29,347.91 8.9900 120 300 11/1/06 No 0.15 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
325 CAP-Clubhouse 8.6000 0.0400 0.0750 First Union
Apartments
324 CAP-Knollwood 8.6000 0.0400 0.0750 First Union
Apartments
323 CAP-Maplewood 8.6000 0.0400 0.0750 First Union
Apartments
322 CAP-Millbrook 8.6000 0.0400 0.0750 First Union
Apartments
321 CAP-Oakwood 8.6000 0.0400 0.0750 First Union
Apartments
293 JF Commons West 9.2000 0.0400 0.0750 First Union
350 Horwitz-Ramada Inn 9.5300 0.0400 0.0750 First Union
- Beaverton
351 Horwitz-Ramada Inn 9.5300 0.0400 0.0750 First Union
- Corvallis
352 Horwitz-Ramada Inn 9.5300 0.0400 0.0750 First Union
- Portland
353 Ramada Inn - 9.3100 0.0400 0.0750 First Union
Seattle
331 Holiday Inn Express 10.0000 0.0400 0.0750 First Union
316 Howard Johnson - 9.7200 0.0400 0.0750 First Union
Delk Road
338 Southgate/Meadowlark 8.9700 0.0400 0.0750 First Union
Mobile Home Park
313 Parker Plaza West 8.8700 0.0400 0.0750 First Union
-29-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
312 Parkridge Village 5252 Orange Avenue San Diego CA 92115 2,650,000 2,648,509.73
Apartments
310 Redbird Plaza 4099-4107 Camp Wisdom Dallas TX 75237 1,250,000 1,250,000.00
Shopping Center Road
291 Days Inn Six Flags 95 South Service Road Austell GA 30001 1,800,000 1,797,705.42
346 Chapel Creek 3410 Hilalgo Dallas TX 75220 2,000,000 2,000,000.00
Apartments
320 Clackamas Corner 11750 SE 82nd Ave. Portland OR 97266 1,800,000 1,800,000.00
311 PETsMART 3195 Hempstead Turnpike Levittown NY 11546 1,440,000 1,440,000.00
347 Park Springs 2002 West Irving Blvd. Irving TX 75061 1,425,000 1,425,000.00
Apartments
357 Glenwood Village 12611 Montgomery Albuquerque NM 87111 2,000,000 2,000,000.00
S.C. Boulevard
358 Casa Claire 1125 Hillcrest Street Mesquite TX 75149 2,450,000 2,450,000.00
Apartments
334 Comfort Inn - 1023 East 23rd Street Panama City FL 32405 3,161,000 3,161,000.00
Panama City
295 Westside Apartments 2647 Broadway New York NY 10025 2,500,000 2,500,000.00
297 Rancho Niguel 25500 Rancho Niguel Laguna Niguel CA 92677 3,739,000 3,739,000.00
Medical Building Road
289 Days Inn North 4610 Rusina Rd. Colorado Springs CO 80907 1,720,000 1,720,000.00
296 Days Inn South 2850 South Circle Drive Colorado Springs CO 80906 2,300,000 2,300,000.00
359 Metro Office 202 West Berry Street Fort Wayne IN 46802 5,300,000 5,300,000.00
Building
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
312 Parkridge Village 21,056.10 8.8600 59 359 10/1/01 No 250 per unit
Apartments
310 Redbird Plaza 10,610.05 9.1400 120 300 11/1/06 No 0.15 per sq. ft.
Shopping Center
291 Days Inn Six Flags 17,669.58 10.2500 239 239 10/1/16 No 4% of gross rev.
346 Chapel Creek 16,100.47 8.8400 120 336 11/1/06 No 250 per unit
Apartments
320 Clackamas Corner 15,676.52 9.4600 120 300 11/1/06 No 0.15 per sq. ft.
311 PETsMART 12,601.26 9.5200 120 300 11/1/06 No 0.15 per sq. ft.
347 Park Springs 11,647.85 8.6800 120 300 11/1/06 No 250 per unit
Apartments
357 Glenwood Village 16,688.16 8.9300 120 300 11/1/06 No 0.15 per sq. ft.
S.C.
358 Casa Claire 19,872.12 9.0900 120 360 11/1/06 No 250 per unit
Apartments
334 Comfort Inn - 31,219.79 10.3400 240 240 11/1/16 No 4% of gross rev.
Panama City
295 Westside Apartments 20,706.68 8.8400 120 300 11/1/06 No 250 per unit
297 Rancho Niguel 30,935.28 9.1100 120 330 11/1/06 No 0.15 per sq. ft.
Medical Building
289 Days Inn North 16,941.68 10.3000 240 240 11/1/16 No 4% of gross rev.
296 Days Inn South 22,654.58 10.3000 240 240 11/1/16 No 4% of gross rev.
359 Metro Office 44,804.51 9.0900 120 300 11/1/06 No 0.15 per sq. ft.
Building
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
312 Parkridge Village 8.7200 0.0600 0.0750 LJ Melody
Apartments
310 Redbird Plaza 9.0200 0.0400 0.0750 First Union
Shopping Center
291 Days Inn Six Flags 10.1300 0.0400 0.0750 First Union
346 Chapel Creek 8.7200 0.0400 0.0750 First Union
Apartments
320 Clackamas Corner 9.3200 0.0600 0.0750 Key Corp
311 PETsMART 9.4000 0.0400 0.0750 First Union
347 Park Springs 8.5600 0.0400 0.0750 First Union
Apartments
357 Glenwood Village 8.8100 0.0400 0.0750 First Union
S.C.
358 Casa Claire 8.9500 0.0600 0.0750 LJ Melody
Apartments
334 Comfort Inn - 10.2200 0.0400 0.0750 First Union
Panama City
295 Westside Apartments 8.7000 0.0600 0.0750 Key Corp
297 Rancho Niguel 8.9700 0.0600 0.0750 LJ Melody
Medical Building
289 Days Inn North 10.1800 0.0400 0.0750 First Union
296 Days Inn South 10.1800 0.0400 0.0750 First Union
359 Metro Office 8.9500 0.0600 0.0750 Key Corp
Building
-30-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
309 Riverside Shopping 2410 Riverside Drive Austin TX 78741 4,000,000 4,000,000.00
Center
348 Comfort Inn 7700 Two Notch Road Columbia SC 29223 1,850,000 1,850,000.00
Columbia
349 Comfort Inn Sugar 5111 North Service Road Charlotte NC 28269 2,200,000 2,200,000.00
Creek
333 Melbourne Village 1270 North Wickham Road Melbourne FL 32935 4,600,000 4,600,000.00
Plaza
360 Park Place 3761 Nova Road Port Orange FL 32119 4,300,000 4,300,000.00
Shopping Center
345 Estes - Best 8738 International Orlando FL 32819 21,000,000 21,000,000.00
Western - Orlando Drive
342 Estes - HoJo Main 6051 Irlo Bronson Kissimmee FL 34747 5,110,000 5,110,000.00
Gate - Kissimmee Memorial Highway
361 Magnolia Gardens 15, 17 & 19 Fordyce New MIlford CT 06776 1,370,000 1,370,000.00
Court
362 Promenade Center 4440 South Maryland Las Vegas NV 89119 2,870,000 2,870,000.00
Parkway
330 911 North Buffalo 911 North Buffalo Drive Las Vegas NV 89128 2,575,000 2,575,000.00
Drive
344 Town Center Plaza SEC Fred Waring Dr. & Palm Desert CA 92260 9,350,000 9,350,000.00
Town Ctr
336 Naugatuck 50 Rado Drive Naugatuck CT 06770 3,211,000 3,211,000.00
Industrial
292 Multiflex VI 2540 Alamo, S.E. & Albuquerque NM 87106 2,215,000 2,215,000.00
2500 Yale Blvd. S.E
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting
Number Property_Name Payment Rate Term Amort Date Lease Reserves
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C>
309 Riverside Shopping 40,976.18 9.1700 180 180 11/1/11 No 0.20 per sq. ft.
Center
348 Comfort Inn 17,523.23 9.7300 240 240 11/1/16 No 4% of gross rev.
Columbia
349 Comfort Inn Sugar 20,550.00 9.5300 240 240 11/1/16 No 4% of gross rev.
Creek
333 Melbourne Village 37,126.30 8.7700 120 324 11/1/06 No 0.15 per sq. ft.
Plaza
360 Park Place 34,406.83 8.6700 120 324 11/1/06 No 0.20 per sq. ft.
Shopping Center
345 Estes - Best 195,462.07 9.8900 264 264 11/1/18 No 4% of gross rev.
Western - Orlando
342 Estes - HoJo Main 47,562.44 9.8900 264 264 11/1/18 No 4% of gross rev.
Gate - Kissimmee
361 Magnolia Gardens 10,748.45 8.7200 120 360 11/1/06 No 250 per unit
362 Promenade Center 23,523.15 9.0000 84 330 11/1/03 No 0.15 per sq. ft.
330 911 North Buffalo 21,632.51 9.2900 120 330 11/1/06 No 0.15 per sq. ft.
Drive
344 Town Center Plaza 73,756.92 8.7800 120 360 11/1/06 No 0.15 per sq. ft.
336 Naugatuck 27,431.98 9.2200 120 300 11/1/06 No 0.15 per sq. ft.
Industrial
292 Multiflex VI 20,820.59 9.6200 240 240 11/1/16 No 0.15 per sq. ft.
</TABLE>
- --------------------------------------------------------------------------------
Control Net Subservicing (1)Servicing
Number Property_Name Rate Fees Fees Subservicer
- --------------------------------------------------------------------------------
309 Riverside Shopping 9.0300 0.0600 0.0750 LJ Melody
Center
348 Comfort Inn 9.6100 0.0400 0.0750 First Union
Columbia
349 Comfort Inn Sugar 9.4100 0.0400 0.0750 First Union
Creek
333 Melbourne Village 8.6300 0.0600 0.0750 Key Corp
Plaza
360 Park Place 8.5300 0.0600 0.0750 Key Corp
Shopping Center
345 Estes - Best 9.7700 0.0400 0.0750 First Union
Western - Orlando
342 Estes - HoJo Main 9.7700 0.0400 0.0750 First Union
Gate - Kissimmee
361 Magnolia Gardens 8.5800 0.0600 0.0750 Key Corp
362 Promenade Center 8.8600 0.0600 0.0750 LJ Melody
330 911 North Buffalo 9.1700 0.0400 0.0750 First Union
Drive
344 Town Center Plaza 8.6600 0.0400 0.0750 First Union
336 Naugatuck 9.1000 0.0400 0.0750 First Union
Industrial
292 Multiflex VI 9.5000 0.0400 0.0750 First Union
-31-
<PAGE>
FU LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
1 Park Victoria 2312 Victoria Drive Kansas City KS 66106 2,607,000 2,588,494.07
2 Woodcrest 3903 Camelot Circle Decatur IL 62526 4,728,000 4,694,438.03
3 Morningside 2401 Jammes Rd Jacksonville FL 32210 1,658,000 1,646,230.60
4 Charter Oaks 8196 Lincoln Avenue Evansville IN 47715 3,700,000 3,685,530.42
5 Seville 1420 North Meridian Tallahassee FL 32303 1,380,000 1,371,005.04
Road
6 Casa Del Lago 3140 Kearsage Drive Lake Havasu AZ 86406 2,000,000 1,991,554.06
City
7 Park Colony 11200 Huffmeister Houston TX 77065 1,425,000 1,414,925.32
8 Northside Villas 2711 Allen Road Tallahassee FL 32312 3,036,000 3,019,786.93
9 Rolling Hills 280 John Knox Road Tallahassee FL 32303 3,108,000 3,086,898.97
10 Stonegate 217 White Drive Tallahassee FL 32304 1,106,000 1,100,332.51
11 Villager 22 Wright Parkway Fort Walton FL 32548 568,000 564,952.82
Beach
12 Wellington Place 10803 Green Creek Drive Houston TX 77070 2,451,000 2,433,671.54
13 Kimberly Club 3000 East Kimberly Road Davenport IA 52807 9,000,000 8,962,951.15
14 Williamstown Bay 3300 East Ramsey Avenue Cudahy WI 53110 850,000 846,987.18
III
15 Lakewood 1542 Arcadia Drive Jacksonville FL 32207 1,950,000 1,938,104.70
16 Turtle Place 455 Eastdale Road South Montgomery AL 36117 2,450,000 2,440,917.05
17 Park View 3101 East Artesia Long Beach CA 90805 2,531,000 2,517,084.22
Boulevard
18 University Place 1205 University Avenue Columbia MO 65201 4,200,000 4,182,328.80
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Park Victoria 20,729.40 8.3500 77 293 4/1/03 No 255 per unit 8.2300
2 Woodcrest 37,594.41 8.3500 77 293 4/1/03 No 200 per unit 8.2300
3 Morningside 13,183.49 8.3500 77 293 4/1/03 No 200 per unit 8.2300
4 Charter Oaks 29,771.04 9.0000 113 353 4/1/06 No 200 per unit 8.8800
5 Seville 11,463.01 8.8750 77 293 4/1/03 No 274 per unit 8.7550
6 Casa Del Lago 15,555.80 8.6250 293 353 4/1/21 No 200 per unit 8.5050
7 Park Colony 11,354.70 8.3750 77 293 4/1/03 No 205 per unit 8.2550
8 Northside Villas 24,087.94 8.6250 77 323 4/1/03 No 281 per unit 8.5050
9 Rolling Hills 25,288.81 8.6250 77 293 4/1/03 No 200 per unit 8.5050
10 Stonegate 8,948.65 8.8500 113 323 4/1/06 No 225 per unit 8.7300
11 Villager 4,496.71 8.6000 113 323 4/1/06 No 332 per unit 8.4800
12 Wellington Place 19,530.08 8.3750 77 293 4/1/03 No 200 per unit 8.2550
13 Kimberly Club 70,803.04 8.7500 113 353 4/1/06 No 200 per unit 8.5950
14 Williamstown Bay 6,662.69 8.7100 294 354 5/1/21 No 150 per unit 8.5900
III
15 Lakewood 15,456.31 8.3125 78 294 5/1/03 No 200 per unit 8.1925
16 Turtle Place 18,821.02 8.4900 114 354 5/1/06 No 200 per unit 8.3700
17 Park View 21,153.47 8.9500 114 294 5/1/06 No 227 per unit 8.8300
18 University Place 34,608.83 9.0625 114 324 5/1/06 No 300 per unit 8.9075
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
1 Park Victoria 0.0400 0.0750 First Union
2 Woodcrest 0.0400 0.0750 First Union
3 Morningside 0.0400 0.0750 First Union
4 Charter Oaks 0.0400 0.0750 First Union
5 Seville 0.0400 0.0750 First Union
6 Casa Del Lago 0.0400 0.0750 First Union
7 Park Colony 0.0400 0.0750 First Union
8 Northside Villas 0.0400 0.0750 First Union
9 Rolling Hills 0.0400 0.0750 First Union
10 Stonegate 0.0400 0.0750 First Union
11 Villager 0.0400 0.0750 First Union
12 Wellington Place 0.0400 0.0750 First Union
13 Kimberly Club 0.0750 0.0750 GMAC
14 Williamstown Bay 0.0400 0.0750 First Union
III
15 Lakewood 0.0400 0.0750 First Union
16 Turtle Place 0.0400 0.0750 First Union
17 Park View 0.0400 0.0750 First Union
18 University Place 0.0750 0.0750 GMAC
-32-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
19 The Ashford 115 South Lois Avenue Tampa FL 33609 1,238,000 1,233,709.78
20 Regency on 4350 West Kennedy Blvd Tampa FL 33609 1,809,000 1,802,731.01
Kennedy
21 Hillcrest 105 West Avenue & Woodstown NJ 08098 2,650,000 2,640,635.69
Hillcrest Drive
22 Fountain Place 920 S. Washington Ave Lansing MI 48910 2,054,000 2,041,957.91
23 Parkwood Lofts II 4231 Travis Street Dallas TX 75205 2,221,000 2,214,931.00
24 Courtyard at 2035 Memorial Drive Atlanta GA 30317 2,750,000 2,738,054.33
Glenview
(Manchester Arms)
25 Sunwood Village 4020 Arville Street Las Vegas NV 89103 8,100,000 8,075,742.70
26 Riverplace 102 North River Street Janesville WI 53545 1,033,000 1,030,147.92
27 Cedar Village 217 Cedar Village Drive York PA 17402 3,750,000 3,737,350.95
28 Elsmere 1410 Cypress Avenue Elsmere DE 19805 1,288,000 1,282,405.08
(2)*29 Laurel Woods 1096 Green Holly Road Clark Summit PA 18411 1,488,000 1,481,536.31
(2)*30 Morgan Manor 124 Mountain View Way Scranton PA 18508 2,325,000 2,314,900.48
31 Franklin 165 Franklin Street Bloomfield NJ 07003 925,000 912,999.61
32 Mountain Top 48-A Forest Drive Bloomingdale NJ 07403 1,220,000 1,215,787.85
33 2540 Valentine 2540 Valentine Ave. Bronx NY 10458 825,000 821,562.26
Avenue
34 1512-24 Leland 1512-24 Leland Avenue Bronx NY 10472 1,100,000 1,096,219.80
Avenue
35 Twin Creek 401 South Twin Creek Kileen TX 76543 4,300,000 4,288,322.81
Drive
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
19 The Ashford 9,801.31 8.8200 114 354 5/1/06 No 262 per unit 8.7000
20 Regency on 14,321.95 8.8200 114 354 5/1/06 No 250 per unit 8.7000
Kennedy
21 Hillcrest 21,719.98 9.0000 115 325 6/1/06 No 240 per unit 8.8450
22 Fountain Place 17,137.17 8.6250 79 271 6/1/03 No 200 per unit 8.5050
23 Parkwood Lofts II 17,982.65 9.0700 79 355 6/1/03 No 250 per unit 8.7400
24 Courtyard at 23,550.50 9.2500 295 295 6/1/21 No 210 per unit 9.1300
Glenview
(Manchester Arms)
25 Sunwood Village 63,000.97 8.6250 55 355 6/1/01 No 225 per unit 8.5050
26 Riverplace 8,326.62 9.0200 295 355 6/1/21 No 175 per unit 8.9000
27 Cedar Village 31,397.36 9.2500 115 325 6/1/06 No 250 per unit 9.1300
28 Elsmere 11,030.20 9.2500 115 295 6/1/06 No 294 per unit 9.1300
(2)*29 Laurel Woods 32,653.84 9.2500 115 295 6/1/06 No 250 per unit 9.1300
(2)*30 Morgan Manor 32,653.84 9.2500 115 295 6/1/06 No 286 per unit 9.1300
31 Franklin 9,589.43 9.3750 175 175 6/1/11 No 250 per unit 9.2550
32 Mountain Top 10,106.80 9.1250 115 325 6/1/06 No 306 per unit 9.0050
33 2540 Valentine 7,208.00 9.5000 115 295 6/1/06 No 338 per unit 9.3800
Avenue
34 1512-24 Leland 9,132.10 9.1500 115 325 6/1/06 No 269 per unit 9.0300
Avenue
35 Twin Creek 34,908.62 9.1000 115 355 6/1/06 No 218 per unit 8.9450
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
19 The Ashford 0.0400 0.0750 First Union
20 Regency on 0.0400 0.0750 First Union
Kennedy
21 Hillcrest 0.0750 0.0750 GMAC
22 Fountain Place 0.0400 0.0750 First Union
23 Parkwood Lofts II 0.1250 0.0750 Arbor
24 Courtyard at 0.0400 0.0750 First Union
Glenview
(Manchester Arms)
25 Sunwood Village 0.0400 0.0750 First Union
26 Riverplace 0.0400 0.0750 First Union
27 Cedar Village 0.0400 0.0750 First Union
28 Elsmere 0.0400 0.0750 First Union
(2)*29 Laurel Woods 0.0400 0.0750 First Union
(2)*30 Morgan Manor 0.0400 0.0750 First Union
31 Franklin 0.0400 0.0750 First Union
32 Mountain Top 0.0400 0.0750 First Union
33 2540 Valentine 0.0400 0.0750 First Union
Avenue
34 1512-24 Leland 0.0400 0.0750 First Union
Avenue
35 Twin Creek 0.0750 0.0750 GMAC
-33-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
36 Greentree I 121 Covington Road Thomasville GA 31792 725,000 722,426.99
37 Greentree II 121 Covington Road Thomasville GA 31792 546,000 544,049.38
38 Spring Hollow 2703 N Buckner Blvd Dallas TX 75228 990,000 987,268.32
39 Valleybrook 169 Roscoe Road Newnan GA 30263 1,594,000 1,588,229.50
40 Colony Woods II 3030 Continental Atlanta GA 30331 1,607,000 1,601,182.44
Colony Parkway #1608
41 Stillwater 1 Stillwater Court Savannah GA 31406 985,000 981,350.87
42 Woods on LaMonte 4800 LaMonte Lane Houston TX 77401 8,100,000 8,082,650.61
43 Jennifer Green 741 Park Avenue Orange Park FL 32073 2,434,000 2,426,779.94
44 Heather Ridge 6200 Barnes Road South Jacksonville FL 32216 1,147,000 1,143,597.61
45 Palm Cove 950 W. Main St. Mesa AZ 85201 2,500,000 2,494,475.98
46 Sunset Way I 15385 SW 73rd Terrace Miami FL 33193 1,693,000 1,686,727.94
Circle
47 Merrifield 1027-A Adams Avenue Salisbury MD 21801 2,137,000 2,129,289.29
48 Marabou Mills I 3420 Marabou Mills Indianapolis IN 46214 1,475,000 1,469,677.91
Drive
49 Orchard Place 1901 Dawson Grand Rapids MI 48116 4,300,000 4,291,528.06
50 Country Wood 791 Bateswood Drive Houston TX 77079 2,242,000 2,235,700.66
51 Candleridge Park 1601 Wooded Pine Houston TX 77073 2,309,000 2,303,910.04
52 Millcreek 1823 Stadium Road Wharton TX 77488 1,935,000 1,929,563.24
53 Art Museum 1705 Art Museum Drive Jacksonville FL 32207 2,140,000 2,135,238.72
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
36 Greentree I 6,133.90 9.1000 116 296 7/1/06 No 270 per unit 8.9800
37 Greentree II 4,604.47 9.0600 116 296 7/1/06 No 318 per unit 8.9400
38 Spring Hollow 8,190.94 9.1100 116 326 7/1/06 No 225 per unit 8.9050
39 Valleybrook 13,354.97 8.9800 116 296 7/1/06 No 270 per unit 8.8600
40 Colony Woods II 13,463.88 8.9800 116 296 7/1/06 No 250 per unit 8.8600
41 Stillwater 8,158.43 8.8400 80 296 7/1/03 No 261 per unit 8.7200
42 Woods on LaMonte 66,050.55 9.1500 80 356 7/1/03 No 230 per unit 8.9950
43 Jennifer Green 19,472.53 8.7200 80 326 7/1/03 No 264 per unit 8.6000
44 Heather Ridge 9,176.25 8.7200 80 326 7/1/03 No 238 per unit 8.6000
45 Palm Cove 20,115.57 9.0000 296 356 7/1/21 No 175 per unit 8.8800
46 Sunset Way I 14,022.56 8.8400 80 296 7/1/03 No 292 per unit 8.7200
47 Merrifield 17,933.63 9.0000 116 296 7/1/06 No 291 per unit 8.8800
48 Marabou Mills I 12,378.15 9.0000 116 296 7/1/06 No 254 per unit 8.8800
49 Orchard Place 36,313.70 9.5500 296 356 7/1/21 No 175 per unit 9.4300
50 Country Wood 18,432.46 8.7500 81 297 8/1/03 No 200 per unit 8.6300
51 Candleridge Park 18,520.80 8.7500 81 327 8/1/03 No 200 per unit 8.6300
52 Millcreek 15,908.48 8.7500 81 297 8/1/03 No 200 per unit 8.6300
53 Art Museum 17,090.64 8.7000 81 327 8/1/03 No 238 per unit 8.5800
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
36 Greentree I 0.0400 0.0750 Continental
Wingate
37 Greentree II 0.0400 0.0750 Continental
Wingate
38 Spring Hollow 0.1250 0.0750 Arbor
39 Valleybrook 0.0400 0.0750 Continental
Wingate
40 Colony Woods II 0.0400 0.0750 Continental
Wingate
41 Stillwater 0.0400 0.0750 Continental
Wingate
42 Woods on LaMonte 0.0750 0.0750 GMAC
43 Jennifer Green 0.0400 0.0750 First Union
44 Heather Ridge 0.0400 0.0750 First Union
45 Palm Cove 0.0400 0.0750 First Union
46 Sunset Way I 0.0400 0.0750 Continental
Wingate
47 Merrifield 0.0400 0.0750 Continental
Wingate
48 Marabou Mills I 0.0400 0.0750 Continental
Wingate
49 Orchard Place 0.0400 0.0750 First Union
50 Country Wood 0.0400 0.0750 First Union
51 Candleridge Park 0.0400 0.0750 First Union
52 Millcreek 0.0400 0.0750 First Union
53 Art Museum 0.0400 0.0750 First Union
-34-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
54 Caribbean Towers 11100 62nd Avenue North Seminole FL 33542 1,100,000 1,096,972.41
55 Briar Hill 5946 54th Avenue North Kenneth City FL 33709 1,256,000 1,252,543.05
56 254 Park Avenue 254 Park Avenue South New York NY 10010 15,715,000 15,688,373.82
South
57 298 Mulberry 298 Mulberry New York NY 10012 8,606,000 8,591,418.72
58 304 Mulberry 304 Mulberry New York NY 10012 5,683,000 5,673,371.20
59 Ridgeview 350 Six Flags Drive Austell GA 30001 2,050,000 2,044,509.71
60 Greenhills 7909 North Grandby Kansas City MO 64151 8,100,000 8,086,626.91
Bicycle Club Avenue
61 Nob Hill 600 North Semoran Winter Park FL 32792 4,043,000 4,036,556.86
Boulevard
62 Aragon Woods 8152 Aragon Woods Drive Indianapolis IN 46214 1,155,000 1,151,711.79
63 Dogwood Glenn II 2390 Woodglen Drive Indianapolis IN 46260 1,425,000 1,421,055.16
64 Meadowood 820 Hospital Road Franklin IN 46131 1,067,000 1,064,063.24
65 Colonial Arms 19 East Colonial Drive New Paltz NY 12561 3,525,000 3,518,084.99
66 Lakeview Commons 15205-15235 18th Plymouth MN 55447 2,379,000 2,375,564.32
Avenue North
67 Stratford Village 14222 Kimberly Lane Houston TX 77079 3,654,000 3,652,024.78
68 Royal Sheridan 4200 Sheridan Street Hollywood FL 33021 2,950,000 2,944,042.15
69 Old Archer Court 3001 SW Old Archer Gainesville FL 32608 1,035,000 1,032,291.80
Road #29
70 Desert Palms 210 West Brown Road Mesa AZ 85201 3,175,000 3,169,758.08
71 Spanish Oaks 3125 Clarksville Street Paris TX 75460 1,061,000 1,058,885.13
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
54 Caribbean Towers 9,137.19 8.8750 117 297 8/1/06 No 265 per unit 8.7550
55 Briar Hill 10,433.00 8.8750 117 297 8/1/06 No 200 per unit 8.7550
56 254 Park Avenue 125,035.60 8.8750 81 357 8/1/03 No 225 per unit 8.7550
South
57 298 Mulberry 68,473.20 8.8750 81 357 8/1/03 No 200 per unit 8.7550
58 304 Mulberry 45,216.50 8.8750 81 357 8/1/03 No 213 per unit 8.7550
59 Ridgeview 17,259.71 9.0400 297 297 8/1/21 No 212 per unit 8.9200
60 Greenhills 65,174.43 9.0000 57 357 8/1/01 No 185 per unit 8.8800
Bicycle Club
61 Nob Hill 33,026.64 9.1700 81 357 8/1/03 No 221 per unit 9.0500
62 Aragon Woods 9,433.06 8.6700 81 297 8/1/03 No 269 per unit 8.5500
63 Dogwood Glenn II 11,802.81 8.8400 117 297 8/1/06 No 251 per unit 8.7200
64 Meadowood 8,863.07 8.8750 117 297 8/1/06 No 307 per unit 8.7550
65 Colonial Arms 29,826.15 9.3750 117 327 8/1/06 No 245 per unit 9.2200
66 Lakeview Commons 20,247.38 9.6400 297 357 8/1/21 No 200 per unit 9.5200
67 Stratford Village 29,532.46 9.0500 84 360 11/1/03 No 235 per unit 8.8450
68 Royal Sheridan 24,636.60 9.2200 117 327 8/1/06 No 200 per unit 9.1000
69 Old Archer Court 8,813.61 9.1800 117 297 8/1/06 No 321 per unit 9.0600
70 Desert Palms 25,546.77 9.0000 297 357 8/1/21 No 175 per unit 8.8800
71 Spanish Oaks 8,913.43 9.2900 297 327 8/1/21 No 275 per unit 9.0850
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
54 Caribbean Towers 0.0400 0.0750 First Union
55 Briar Hill 0.0400 0.0750 First Union
56 254 Park Avenue 0.0400 0.0750 First Union
South
57 298 Mulberry 0.0400 0.0750 First Union
58 304 Mulberry 0.0400 0.0750 First Union
59 Ridgeview 0.0400 0.0750 First Union
60 Greenhills 0.0400 0.0750 First Union
Bicycle Club
61 Nob Hill 0.0400 0.0750 First Union
62 Aragon Woods 0.0400 0.0750 Continental
Wingate
63 Dogwood Glenn II 0.0400 0.0750 Continental
Wingate
64 Meadowood 0.0400 0.0750 Continental
Wingate
65 Colonial Arms 0.0750 0.0750 GMAC
66 Lakeview Commons 0.0400 0.0750 First Union
67 Stratford Village 0.1250 0.0750 Continental
Wingate
68 Royal Sheridan 0.0400 0.0750 First Union
69 Old Archer Court 0.0400 0.0750 Continental
Wingate
70 Desert Palms 0.0400 0.0750 First Union
71 Spanish Oaks 0.1250 0.0750 Arbor
-35-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
72 Slate Run 248 S. Heincke Road Miamisburg OH 45342 900,000 898,311.97
73 Olde Mill Landing 11800 Beltsville Drive Beltsville MD 20705 18,500,000 18,478,634.91
74 Lindendale 3580 Lindendale Drive Columbus OH 43204 1,444,000 1,441,228.47
75 Clearlake Village 1239 Bay Area Boulevard Houston TX 77062 2,167,000 2,163,899.85
76 Kingswood Estates 1910 South Chipman Owosso MI 48867 1,842,000 1,838,632.58
Street
77 Ridgewood II 3863 Memorial Drive Unicorporated GA 30032 1,053,000 1,051,002.08
Decatur
78 Country View - 607 Reeve Drive Waunakee WI 53597 1,199,000 1,197,560.00
Wisconsin
79 Country View - 6324 Baker Boulevard Haltom City TX 76118 1,400,000 1,397,544.73
Texas
80 Gregory 3300 16th Street Washington DC 20010 3,500,000 3,497,648.57
Apartments
81 Sutton Place 6838 Everhart Road Corpus Christi TX 78413 2,800,000 2,798,095.74
169 Beverly Hills 8757 Burton Way Beverly Hills CA 90048 5,500,000 5,486,357.62
Carmel
Retirement Hotel
I
170 Beverly Hills 8750 Burton Way Beverly Hills CA 90048 4,500,000 4,488,838.05
Carmel
Retirement Hotel
II
88 Skyline 1570 Sky Valley Drive Reno NV 89503 3,893,000 3,890,842.33
89 Skyview 1590 Sky Valley Drive Reno NV 89503 4,027,000 4,024,768.06
82 Islander Marina 14015 West Tahiti Way Marina Del Rey CA 90292 10,125,000 10,110,315.36
83 Park Towne Place 2201 Park Towne Place Philadelphia PA 19130 38,500,000 38,500,000.00
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
72 Slate Run 7,380.96 8.7200 118 298 9/1/06 No 323 per unit 8.6000
73 Olde Mill Landing 145,539.58 8.7500 118 358 9/1/06 No 255 per unit 8.5950
74 Lindendale 11,705.43 8.5800 118 298 9/1/06 No 240 per unit 8.4600
75 Clearlake Village 17,571.14 8.8750 118 328 9/1/06 No 235 per unit 8.7550
76 Kingswood Estates 15,300.63 8.8750 82 298 9/1/03 No 309 per unit 8.7550
77 Ridgewood II 8,585.75 8.6500 118 298 9/1/06 No 297 per unit 8.5300
78 Country View - 9,270.31 8.5600 298 358 9/1/21 Yes 175 per unit 8.4400
Wisconsin
79 Country View - 11,868.82 9.1250 118 298 9/1/06 No 200 per unit 8.9200
Texas
80 Gregory 29,155.60 9.1900 119 329 10/1/06 No 225 per unit 9.0700
Apartments
81 Sutton Place 23,195.93 9.1250 83 329 10/1/03 No 267 per unit 9.0050
169 Beverly Hills 48,053.32 9.5000 117 297 8/1/06 No 252 per unit 9.3800
Carmel
Retirement Hotel
I
170 Beverly Hills 39,316.35 9.5000 117 297 8/1/06 No 250 per unit 9.3800
Carmel
Retirement Hotel
II
88 Skyline 31,128.08 8.9300 359 359 10/1/26 No 150 per unit 8.8100
89 Skyview 32,199.53 8.9300 359 359 10/1/26 No 150 per unit 8.8100
82 Islander Marina 92,731.52 9.2500 239 239 10/1/16 Yes 299 per unit 9.1300
83 Park Towne Place 313,248.70 9.1250 120 360 11/1/06 No 250 per unit 8.9700
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
72 Slate Run 0.0400 0.0750 Continental
Wingate
73 Olde Mill Landing 0.0750 0.0750 GMAC
74 Lindendale 0.0400 0.0750 Continental
Wingate
75 Clearlake Village 0.0400 0.0750 First Union
76 Kingswood Estates 0.0400 0.0750 First Union
77 Ridgewood II 0.0400 0.0750 Continental
Wingate
78 Country View - 0.0400 0.0750 First Union
Wisconsin
79 Country View - 0.1250 0.0750 Continental
Texas Wingate
80 Gregory 0.0400 0.0750 First Union
Apartments
81 Sutton Place 0.0400 0.0750 First Union
169 Beverly Hills 0.0400 0.0750 First Union
Carmel
Retirement Hotel
I
170 Beverly Hills 0.0400 0.0750 First Union
Carmel
Retirement Hotel
II
88 Skyline 0.0400 0.0750 First Union
89 Skyview 0.0400 0.0750 First Union
82 Islander Marina 0.0400 0.0750 First Union
83 Park Towne Place 0.0750 0.0750 GMAC
-36-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
(3)*108 1111 Beacon 1111 Beacon Street Brookline MA 02146 5,700,000 5,693,749.67
Street***
(3)*108 1101 Beacon 1101 Beacon Street Brookline MA 02146 4,000,000 3,995,613.80
Street***
94 Biggs Park Mall 2800 N. Elm Street Lumberton NC 5,800,000 5,775,323.17
95 5354 Dixie 5354 Dixie Highway Louisville KY 683,000 677,035.33
Highway
96 801 Eastgate 801 Eastgate Drive Cincinnati OH 865,000 857,445.92
Drive
97 1700 East Dublin 1700 East Dublin - Columbus OH 741,000 734,528.82
- Granville Road Granville Road
98 Herndon Centre II 460-490 Elden Street Herndon VA 4,433,000 4,404,270.30
99 Kensington 415 8th Street NW Buffalo MN 55313 1,700,000 1,690,003.51
Cottages
100 G-5054 Miller G-5054 Miller Road Flint MI 849,000 841,585.65
Road
101 Market Place N.C. Highway 180 Shelby NC 28150 6,600,000 6,577,790.46
Shopping Center
102 Norwest Bank 9719 North Hayden Road Scottsdale AZ 1,110,000 1,105,277.37
Building
103 4810 Outer Loop 4810 Outer Loop Louisville KY 657,000 651,262.39
104 4180 Plainfield 4180 Plainfield Grand Rapids MI 48505 659,000 653,423.78
Northeast Northeast
105 Plaza 59 10508 Bennett Road Dunkirk NY 14048 1,264,000 1,259,803.05
106 Rhodes Furniture 4363 Northeast Doraville GA 2,600,000 2,586,394.59
Store Expressway
107 Tower Glen 2216 West County Road D Roseville MN 1,598,000 1,593,952.45
Shopping Center
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
(3)*108 1111 Beacon 78,048.39 9.0000 118 358 9/1/06 No 295 per unit 8.8800
Street***
(3)*108 1101 Beacon 78,048.39 9.0000 118 358 9/1/06 No 0.29 per sq. ft. 8.8800
Street***
94 Biggs Park Mall 50,171.35 9.3750 115 295 6/1/06 No 0.16 per sq. ft. 9.2550
95 5354 Dixie 6,310.81 9.3750 114 234 5/1/06 No 0.13 per sq. ft. 9.2550
Highway
96 801 Eastgate 7,992.46 9.3750 114 234 5/1/06 No 0.67 per sq. ft. 9.2550
Drive
97 1700 East Dublin 6,846.72 9.3750 114 234 5/1/06 No 0.77 per sq. ft. 9.2550
- Granville Road
98 Herndon Centre II 36,928.75 8.9100 113 293 4/1/06 Yes 0.16 per sq. ft. 8.7900
99 Kensington 14,852.84 9.5000 113 293 4/1/06 No 300 per unit 9.3800
Cottages
100 G-5054 Miller 7,844.62 9.3750 114 234 5/1/06 No 0.37 per sq. ft. 9.2550
Road
101 Market Place 53,875.78 9.0000 115 331 6/1/06 No 0.10 per sq. ft. 8.8800
Shopping Center
102 Norwest Bank 9,601.76 9.3750 115 295 6/1/06 No 0.15 per sq. ft. 9.1700
Building
103 4810 Outer Loop 6,070.57 9.3750 114 234 5/1/06 No 0.70 per sq. ft. 9.2550
104 4180 Plainfield 6,196.64 9.6250 114 234 5/1/06 No 0.53 per sq. ft. 9.5050
Northeast
105 Plaza 59 11,043.53 9.5000 116 296 7/1/06 No 0.15 per sq. ft. 9.3800
106 Rhodes Furniture 22,265.93 9.2500 78 294 5/1/03 No 0.05 per sq. ft. 9.1300
Store
107 Tower Glen 13,823.07 9.3750 117 297 8/1/06 No 0.11 per sq. ft. 9.1700
Shopping Center
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
(3)*108 1111 Beacon 0.0400 0.0750 First Union
Street***
(3)*108 1101 Beacon 0.0400 0.0750 First Union
Street***
94 Biggs Park Mall 0.0400 0.0750 First Union
95 5354 Dixie 0.0400 0.0750 First Union
Highway
96 801 Eastgate 0.0400 0.0750 First Union
Drive
97 1700 East Dublin 0.0400 0.0750 First Union
- Granville Road
98 Herndon Centre II 0.0400 0.0750 First Union
99 Kensington 0.0400 0.0750 First Union
Cottages
100 G-5054 Miller 0.0400 0.0750 First Union
Road
101 Market Place 0.0400 0.0750 First Union
Shopping Center
102 Norwest Bank 0.1250 0.0750 Continental
Building Wingate
103 4810 Outer Loop 0.0400 0.0750 First Union
104 4180 Plainfield 0.0400 0.0750 First Union
Northeast
105 Plaza 59 0.0400 0.0750 First Union
106 Rhodes Furniture 0.0400 0.0750 First Union
Store
107 Tower Glen 0.1250 0.0750 Continental
Shopping Center Wingate
-37-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
109 Arcadia Lakes 6432 Two Notch Road Columbia SC 1,500,000 1,496,039.01
Shopping Center
110 Central Shopping 3701 N.W. 7 Street Miami FL 33126 13,650,000 13,603,720.96
Center
111 Cor-West Plaza 703 West Main Street New Britain CT 06053 1,935,000 1,930,098.87
Shopping Center
112 Days Inn - 2735 South Woodlands Flagstaff AZ 1,650,000 1,645,843.44
Flagstaff Village Boulevard
113 Park Forest 3530 Forest Lane Dallas TX 2,255,000 2,249,636.84
Office Building
114 Sims Creek Plaza 1695-1697 Indiantown Jupiter FL 33458 1,450,000 1,440,338.13
Road
115 163 / 174 163 & 174 Newbury Boston MA 1,515,000 1,510,073.85
Newbury Street Street
116 61-65 Brookline 61 - 65 Brookline Boston MA 02215 6,600,000 6,583,465.78
Avenue Avenue
117 Logan Healthcare 587 Washington Street Weymouth MA 02188 630,000 627,951.50
Management Plaza
118 415 Hamburg 415 Hamburg Turnpike Wayne NJ 07470 8,684,000 8,668,450.28
Turnpike
119 Lynnfield 584-592 Main Street Lynnfield MA 01940 1,761,000 1,756,483.22
Shopping Centre
120 SMC 316 3563 Berlin Turnpike Newington CT 06111 2,810,000 2,810,000.00
121 SMC 202 1380 N. Dupont Hway Dover DE 2,848,000 2,848,000.00
122 SMC 452 260 Jimmy Ann Drive Daytona Beach FL 2,810,000 2,810,000.00
125 SMC 343 123 South Kingston Bloomington IN 2,773,000 2,773,000.00
Drive
126 SMC 309 5501 Coldwater Road Fort Wayne IN 2,698,000 2,698,000.00
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
109 Arcadia Lakes 12,716.59 9.1250 81 297 8/1/03 No 0.10 per sq. ft. 8.9700
Shopping Center
110 Central Shopping 118,075.68 9.3750 116 296 7/1/06 No 0.12 per sq. ft. 9.2050
Center
111 Cor-West Plaza 16,738.20 9.3750 117 297 8/1/06 No 0.11 per sq. ft. 9.2550
Shopping Center
112 Days Inn - 16,334.96 10.3750 118 238 9/1/06 No 4% of gross rev. 10.2550
Flagstaff
113 Park Forest 20,095.15 9.7500 81 297 8/1/03 No 0.20 per sq. ft. 9.6300
Office Building
114 Sims Creek Plaza 11,911.23 8.7400 113 293 4/1/06 No 0.30 per sq. ft. 8.6200
115 163 / 174 13,368.38 9.6250 116 296 7/1/06 No 0.20 per sq. ft. 9.5050
Newbury Street
116 61-65 Brookline 57,021.65 9.6250 116 326 7/1/06 No 0.28 per sq. ft. 9.5050
Avenue
117 Logan Healthcare 5,559.13 9.6250 80 296 7/1/03 No 0.20 per sq. ft. 9.5050
Management Plaza
118 415 Hamburg 72,875.81 9.0000 118 298 9/1/06 No 0.23 per sq. ft. 8.8800
Turnpike
119 Lynnfield 15,057.12 9.5000 116 326 7/1/06 No 0.23 per sq. ft. 9.3800
Shopping Centre
120 SMC 316 28,962.41 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
121 SMC 202 29,354.07 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
122 SMC 452 28,962.41 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
125 SMC 343 28,581.05 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
126 SMC 309 27,808.04 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
109 Arcadia Lakes 0.0750 0.0750 GMAC
Shopping Center
110 Central Shopping 0.0900 0.0750 First Union
Center
111 Cor-West Plaza 0.0400 0.0750 First Union
Shopping Center
112 Days Inn - 0.0400 0.0750 First Union
Flagstaff
113 Park Forest 0.0400 0.0750 First Union
Office Building
114 Sims Creek Plaza 0.0400 0.0750 First Union
115 163 / 174 0.0400 0.0750 First Union
Newbury Street
116 61-65 Brookline 0.0400 0.0750 First Union
Avenue
117 Logan Healthcare 0.0400 0.0750 First Union
Management Plaza
118 415 Hamburg 0.0400 0.0750 First Union
Turnpike
119 Lynnfield 0.0400 0.0750 First Union
Shopping Centre
120 SMC 316 0.0400 0.0750 First Union
121 SMC 202 0.0400 0.0750 First Union
122 SMC 452 0.0400 0.0750 First Union
125 SMC 343 0.0400 0.0750 First Union
126 SMC 309 0.0400 0.0750 First Union
-38-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
127 SMC 441 6502 Grape Road Mishawaka IN 2,735,000 2,735,000.00
128 SMC 214 1636 Martin Luther Houma LA 2,286,000 2,286,000.00
King Blvd.
130 SMC 532 7368 Nankin Road Westland MI 2,660,000 2,660,000.00
131 SMC 389 4701 Capitol Blvd Raleigh NC 2,848,000 2,848,000.00
132 SMC 190 5537 N.W. Expressway Warr Acres OK 2,398,000 2,398,000.00
133 SMC 259 9333 Kingston Pike Knoxville TN 2,735,000 2,735,000.00
134 SMC 359 11250 N. Central Dallas TX 2,885,000 2,885,000.00
Expressway
135 SMC 353 17727 Tomball Parkway Houston TX 3,110,000 3,110,000.00
136 SMC 042 2665 HWY 6 South Houston TX 2,585,000 2,585,000.00
137 SMC 276 600 E. Expressway 83 McAllen TX 3,073,000 3,073,000.00
138 SMC 440 1300 E. Beltline Road Richardson TX 2,286,000 2,286,000.00
139 SMC 277 6161 Northwest Loop 410 San Antonio TX 2,623,000 2,623,000.00
140 SMC 360 9860 West Broad St. Glen Allen VA 3,447,000 3,447,000.00
141 SMC 348 1300 Huguenot Road Midlothian VA 3,220,000 3,220,000.00
142 Sigo Shopping 205 East Oneida Street Oswego NY 2,100,000 2,098,631.51
Center
145 Intelligent 5025 Tuggle Road Memphis TN 38118 11,250,000 11,244,167.76
Electronics
146 Allflex USA, Inc. 2805 E. 12th Street Irving TX 75063 1,100,000 1,097,190.10
147 Flagler 251 255 East Flagler Street Miami FL 33131 10,800,000 10,800,000.00
148 Rivers Park 8085 Rivers Avenue North SC 29406 3,000,000 3,000,000.00
Business Center Charleston
- Phase II
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
127 SMC 441 28,189.39 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
128 SMC 214 23,561.59 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
130 SMC 532 27,416.37 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
131 SMC 389 29,354.07 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
132 SMC 190 24,715.96 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
133 SMC 259 28,189.39 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
134 SMC 359 29,735.43 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
135 SMC 353 32,054.48 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
136 SMC 042 26,643.36 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
137 SMC 276 31,673.13 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
138 SMC 440 23,561.59 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
139 SMC 277 27,035.02 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
140 SMC 360 35,527.91 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
141 SMC 348 33,188.24 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
142 Sigo Shopping 18,212.24 9.6250 119 323 10/1/06 No 0.12 per sq. ft. 9.5050
Center
145 Intelligent 92,550.99 9.2500 119 359 10/1/06 No 0.05 per sq. ft. 9.1300
Electronics
146 Allflex USA, Inc. 11,403.65 9.3750 179 179 10/1/11 Yes 0.22 per sq. ft. 9.2550
147 Flagler 251 89,710.55 8.8750 84 300 11/1/03 No 0.15 per sq. ft. 8.7550
148 Rivers Park 30,539.64 9.0625 120 180 11/1/06 No 0.10 per sq. ft. 8.9425
Business Center
- Phase II
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
127 SMC 441 0.0400 0.0750 First Union
128 SMC 214 0.0400 0.0750 First Union
130 SMC 532 0.0400 0.0750 First Union
131 SMC 389 0.0400 0.0750 First Union
132 SMC 190 0.0400 0.0750 First Union
133 SMC 259 0.0400 0.0750 First Union
134 SMC 359 0.0400 0.0750 First Union
135 SMC 353 0.0400 0.0750 First Union
136 SMC 042 0.0400 0.0750 First Union
137 SMC 276 0.0400 0.0750 First Union
138 SMC 440 0.0400 0.0750 First Union
139 SMC 277 0.0400 0.0750 First Union
140 SMC 360 0.0400 0.0750 First Union
141 SMC 348 0.0400 0.0750 First Union
142 Sigo Shopping 0.0400 0.0750 First Union
Center
145 Intelligent 0.0400 0.0750 First Union
Electronics
146 Allflex USA, Inc. 0.0400 0.0750 First Union
147 Flagler 251 0.0400 0.0750 First Union
148 Rivers Park 0.0400 0.0750 First Union
Business Center
- Phase II
-39-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
149 Normandy Village 7764 Normandy Boulevard Jacksonville FL 2,550,000 2,550,000.00
150 Pelham 6 6 Logue Court Greenville SC 1,750,000 1,750,000.00
151 Kings Court 901 S. Kings Drive Charlotte NC 28204 1,950,000 1,948,734.80
Shopping Center
152 The Port 241 Erie Street Jersey City NJ 07310 17,000,000 16,975,344.30
Authority of
NY/NJ Technical
Center
153 Best Buy 14401 Township Road 212 Findlay OH 45840 18,375,000 18,365,221.50
Distribution
Center
155 Willow Wood 1141-1187 Wantagh Ave. Wantagh NY 6,098,000 6,098,000.00
Shoppes
156 Comfort Inn - 2136 Rockford Street Mount Airy NC 2,600,000 2,596,631.23
Mt. Airy
158 Palmdale 4500 Avenue S Palmdale CA 2,642,000 2,639,643.43
Marketplace
159 Reston 11800, 11840 & Reston VA 10,650,000 10,631,616.04
International 11816-11832 Sunrise
Center Valley Drive
160 Shaw Butte Center Corner of N. 7th Phoenix AZ 1,410,000 1,408,843.38
Street & Thunderbird
Road
161 Valli Hi SE Corner of South Colorado CO 1,870,000 1,868,400.24
Shopping Center Circle Dr. & Airport Springs
Rd.
163 7 Star Mobile 170 Koontz Lane Carson City NV 3,700,000 3,693,905.75
Home Park
164 501 Route 17 501 Route 17 South Paramus NJ 07652 6,591,000 6,586,839.35
South
165 Las Villas del 1325 Las Villas Way Escondido CA 92026 9,233,000 9,226,041.33
Norte
168 Comfort Inn - 600 Fairview Rd. / Simpsonville SC 2,500,000 2,500,000.00
Simpsonville I-385, Exit 27
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
149 Normandy Village 21,399.51 9.0000 120 300 11/1/06 No 0.10 per sq. ft. 8.8800
150 Pelham 6 14,911.28 9.1875 120 300 11/1/06 No 0.10 per sq. ft. 9.0675
151 Kings Court 16,499.57 9.3750 119 329 10/1/06 No 0.15 per sq. ft. 9.2550
Shopping Center
152 The Port 155,697.36 9.2500 239 239 10/1/16 No 0.14 per sq. ft. 9.1300
Authority of
NY/NJ Technical
Center
153 Best Buy 149,505.06 9.1250 119 359 10/1/06 No 0.05 per sq. ft. 9.0050
Distribution
Center
155 Willow Wood 49,615.34 9.1250 84 360 11/1/03 No 0.26 per sq. ft. 9.0050
Shoppes
156 Comfort Inn - 25,306.27 10.1250 119 239 10/1/06 No 4% of gross rev. 10.0050
Mt. Airy
158 Palmdale 22,171.57 9.0000 83 299 10/1/03 No 0.14 per sq. ft. 8.8800
Marketplace
159 Reston 90,984.30 9.2200 82 298 9/1/03 No 0.10 per sq. ft. 9.1000
International
Center
160 Shaw Butte Center 12,319.12 9.5000 83 299 10/1/03 No 0.18 per sq. ft. 9.3800
161 Valli Hi 16,014.34 9.2500 119 299 10/1/06 No 0.20 per sq. ft. 9.1300
Shopping Center
163 7 Star Mobile 32,326.78 9.5000 118 298 9/1/06 No 31 per pad 9.3800
Home Park
164 501 Route 17 56,449.25 9.5200 119 329 10/1/06 No 0.29 per sq. ft. 9.4000
South
165 Las Villas del 83,900.34 10.0000 119 299 10/1/06 No 250 per unit 9.8800
Norte
168 Comfort Inn - 26,105.62 9.5000 180 180 11/1/11 No 4% of gross rev. 9.3800
Simpsonville
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
149 Normandy Village 0.0400 0.0750 First Union
150 Pelham 6 0.0400 0.0750 First Union
151 Kings Court 0.0400 0.0750 First Union
Shopping Center
152 The Port 0.0400 0.0750 First Union
Authority of
NY/NJ Technical
Center
153 Best Buy 0.0400 0.0750 Key Corp
Distribution
Center
155 Willow Wood 0.0400 0.0750 First Union
Shoppes
156 Comfort Inn - 0.0400 0.0750 First Union
Mt. Airy
158 Palmdale 0.0400 0.0750 First Union
Marketplace
159 Reston 0.0400 0.0750 First Union
International
Center
160 Shaw Butte Center 0.0400 0.0750 First Union
161 Valli Hi 0.0400 0.0750 First Union
Shopping Center
163 7 Star Mobile 0.0400 0.0750 First Union
Home Park
164 501 Route 17 0.0400 0.0750 First Union
South
165 Las Villas del 0.0400 0.0750 First Union
Norte
168 Comfort Inn - 0.0400 0.0750 First Union
Simpsonville
-40-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
171 Charlotte Square 2150 US 41 Port Charlotte FL 3,940,000 3,934,683.15
172 Tamarac Town 8177 North Pine Island Tamarac FL 6,635,000 6,628,003.22
Square Road
173 Riverside Square 8190 Wiles Road Coral Springs FL 8,225,000 8,216,326.52
174 Countryside Lakes 941 Village Trail Port Orange FL 32119 6,800,000 6,788,562.33
175 Village Shopping 19609 NW 57th Ave. Miami FL 33055 2,000,000 1,996,564.87
Center
176 Woodland Park 21711 Ventura Boulevard Woodland Hills CA 4,375,000 4,371,559.61
West Retirement
Hotel
144 Tarzana Town 18607 Ventura Boulevard Tarzana CA 2,973,000 2,973,000.00
Plaza
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
171 Charlotte Square 32,813.91 9.1875 171 328 2/1/11 No 0.22 per sq. ft. 9.0675
172 Tamarac Town 54,284.27 9.1875 155 358 10/1/09 No 0.22 per sq. ft. 9.0675
Square
173 Riverside Square 67,292.86 9.1875 184 358 3/1/12 No 0.10 per sq. ft. 9.0675
174 Countryside Lakes 58,821.58 9.3750 118 298 9/1/06 No 292 per unit 9.2550
175 Village Shopping 17,127.64 9.2500 118 298 9/1/06 No 0.26 per sq. ft. 9.1300
Center
176 Woodland Park 38,987.26 9.7500 119 299 10/1/06 No 225 per unit 9.6300
West Retirement
Hotel
144 Tarzana Town 26,085.69 9.8125 120 330 11/1/06 No 0.11 per sq. ft. 9.6925
Plaza
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
171 Charlotte Square 0.0400 0.0750 First Union
172 Tamarac Town 0.0400 0.0750 First Union
Square
173 Riverside Square 0.0400 0.0750 First Union
174 Countryside Lakes 0.0400 0.0750 First Union
175 Village Shopping 0.0400 0.0750 First Union
Center
176 Woodland Park 0.0400 0.0750 First Union
West Retirement
Hotel
144 Tarzana Town 0.0400 0.0750 First Union
Plaza
-41-
<PAGE>
ML LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
201 JMA - Ashford On 2700 S. Dairy Ashford Houston TX 77082 3,450,000 3,444,409.56
The Green Apts.
202 Belmont Square 2020 Jerry Murphy Road Pueblo CO 81001 3,320,300 3,313,276.46
Apts.
203 JMA - Brookmore 810 Brooks Avenue Rosenburg TX 77471 1,811,661 1,808,761.78
Hollow Apartments
205 Capital Tech 1611 N. Stemmons Freeway Carrollton TX 75006 1,253,800 1,247,389.50
Center
206 Clinton 7100-7251 Clinton Drive Houston TX 77020 1,762,500 1,753,030.20
Industrial Park
207 26 Court Street 26 Court Street Brooklyn NY 11242 9,500,000 9,409,634.76
209 Crosby Creek 1300 E. Crosby Road Carrollton TX 75006 2,400,000 2,388,936.09
210 INT-Deer Creek 16303 Imperial Valley Houston TX 77060 3,326,100 3,315,902.31
Apartments Drive
211 First Line 1120 Red Bluff Road Pasadena TX 77506 1,350,000 1,343,857.96
Apartments
212 Fountainview 6015 Winsome & 6100 Houston TX 77057 1,971,700 1,963,141.63
Lodge I & II Apts. Fairdale
213 Friendship Square 1115 - 1195 Bridge Brighton CO 80601 1,175,000 1,167,533.30
Street
214 Fountain Square 544 Camp Avenue Gulfport MS 39501 1,800,000 1,791,971.16
Apartments
215 INT-6200 Gessner 8721 Town Park Drive Houston TX 77036 10,000,000 9,969,340.40
Apartments
217 Lakewood Village 200 E. Lakewood Drive Nacogdoches TX 75961 1,120,000 1,114,870.71
Apartments
218 INT-The Lodge 7600 Kirby Houston TX 77030 4,553,500 4,539,539.15
Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
201 JMA - Ashford On 27,983.19 9.0900 117 357 8/1/06 No 250 per unit 8.9500
The Green Apts.
202 Belmont Square 27,219.10 9.2100 116 356 7/1/06 No 250 per unit 9.0900
Apts.
203 JMA - Brookmore 14,772.99 9.1500 117 357 8/1/06 No 250 per unit 9.0100
Hollow Apartments
205 Capital Tech 10,858.69 9.3900 54 294 5/1/01 No 0.15 per sq. ft. 9.2700
Center
206 Clinton 14,899.61 9.0900 114 294 5/1/06 No 0.15 per sq. ft. 8.9700
Industrial Park
207 26 Court Street 91,362.57 9.9500 233 233 4/1/16 No 0.21 per sq. ft. 9.8100
209 Crosby Creek 19,960.24 8.8900 115 295 6/1/06 No 250 per unit 8.7700
210 INT-Deer Creek 25,598.41 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
211 First Line 11,301.43 8.9700 115 295 6/1/06 No 250 per unit 8.8500
Apartments
212 Fountainview 15,146.70 8.4900 113 353 4/1/06 No 250 per unit 8.3500
Lodge I & II Apts.
213 Friendship Square 9,884.71 9.0300 113 293 4/1/06 No 0.16 per sq. ft. 8.8900
214 Fountain Square 15,216.62 9.0900 175 295 6/1/11 No 250 per unit 8.9700
Apartments
215 INT-6200 Gessner 76,962.23 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
217 Lakewood Village 9,345.37 8.9300 79 295 6/1/03 No 250 per unit 8.8100
Apartments
218 INT-The Lodge 35,044.75 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
201 JMA - Ashford On 0.0600 0.0750 LJ Melody
The Green Apts.
202 Belmont Square 0.0400 0.0750 First Union
Apts.
203 JMA - Brookmore 0.0600 0.0750 LJ Melody
Hollow Apartments
205 Capital Tech 0.0400 0.0750 First Union
Center
206 Clinton 0.0400 0.0750 First Union
Industrial Park
207 26 Court Street 0.0600 0.0750 Key Corp
209 Crosby Creek 0.0400 0.0750 First Union
210 INT-Deer Creek 0.0400 0.0750 First Union
Apartments
211 First Line 0.0400 0.0750 First Union
Apartments
212 Fountainview 0.0600 0.0750 LJ Melody
Lodge I & II Apts.
213 Friendship Square 0.0600 0.0750 LJ Melody
214 Fountain Square 0.0400 0.0750 First Union
Apartments
215 INT-6200 Gessner 0.0400 0.0750 First Union
Apartments
217 Lakewood Village 0.0400 0.0750 First Union
Apartments
218 INT-The Lodge 0.0400 0.0750 First Union
Apartments
-42-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
219 Mount View 20-90 Mount View Lane Colorado CO 80907 1,771,400 1,761,866.69
Business Park Springs
221 Pecos Trail 1660 Old Pecos Trail Santa Fe NM 87501 1,468,300 1,463,764.55
Office Compound
223 Ralston Plaza Ward Rd. & 64th Ave. Arvada CO 80002 2,461,100 2,449,308.85
224 INT-Regency Walk 10301 Sandpiper Houston TX 77096 4,360,000 4,346,632.41
Apartments
225 Southgate 801A Southgate Drive State College PA 16801 3,300,000 3,294,596.76
Apartments &
Townhouses
228 Shafer Plaza 8383 Westheimer Houston TX 77063 6,500,000 6,482,638.88
Shopping Center
229 Shiloh Road 1717 Shiloh Road Tyler TX 75703 3,320,000 3,310,525.88
Apartments
230 Silvercreek II 4619 W. 34th Street Houston TX 77092 1,500,000 1,488,771.26
Apartments
235 BCM-Westheimer 5820 Berkman Drive Austin TX 78723 720,000 718,140.97
Court Apts.
237 Westheimer House 5800 Wellington Drive Austin TX 78723 1,200,000 1,196,901.62
238 Woodwillow 3601 Willow Springs Road Austin TX 78704 1,431,000 1,427,922.18
Townhomes
239 Timbergrove Manor 1600 West T. C. Jester Houston TX 77008 1,405,000 1,402,713.83
Apts. Blvd
242 JMA - Woodcreek 3023 Woodcreek Lane Houston TX 77345 820,000 818,671.26
Village Apartments
244 SHL - San Antonio 7458 Louis Pasteur San Antonio TX 78229 3,030,000 3,024,633.39
Station Apts.
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
219 Mount View 14,962.69 9.0800 78 294 5/1/03 No 0.16 per sq. ft. 8.9600
Business Park
221 Pecos Trail 13,270.07 9.9300 116 296 7/1/06 No 0.15 per sq. ft. 9.8100
Office Compound
223 Ralston Plaza 21,983.50 9.7800 114 294 5/1/06 No 0.16 per sq. ft. 9.6600
224 INT-Regency Walk 33,555.53 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
225 Southgate 26,647.58 9.0400 117 357 8/1/06 No 275 per unit 8.9200
Apartments &
Townhouses
228 Shafer Plaza 53,144.50 9.1800 115 355 6/1/06 No 0.15 per sq. ft. 9.0400
Shopping Center
229 Shiloh Road 26,379.72 8.8600 55 355 6/1/01 No 225 per unit 8.7400
Apartments
230 Silvercreek II 13,611.87 9.1200 235 235 6/1/16 No 250 per unit 9.0000
Apartments
235 BCM-Westheimer 6,170.92 9.2600 117 297 8/1/06 No 290 per unit 9.1400
Court Apts.
237 Westheimer House 10,284.86 9.2600 117 297 8/1/06 No 296 per unit 9.1400
238 Woodwillow 11,648.26 9.1300 80 356 7/1/03 No 250 per unit 9.0100
Townhomes
239 Timbergrove Manor 11,375.79 9.0700 117 357 8/1/06 No 250 per unit 8.9500
Apts.
242 JMA - Woodcreek 6,651.08 9.0900 117 357 8/1/06 No 250 per unit 8.9500
Village Apartments
244 SHL - San Antonio 23,642.52 8.6600 45 357 8/1/00 No 250 per unit 8.5400
Station Apts.
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
219 Mount View 0.0400 0.0750 First Union
Business Park
221 Pecos Trail 0.0400 0.0750 First Union
Office Compound
223 Ralston Plaza 0.0400 0.0750 First Union
224 INT-Regency Walk 0.0400 0.0750 First Union
Apartments
225 Southgate 0.0400 0.0750 First Union
Apartments &
Townhouses
228 Shafer Plaza 0.0600 0.0750 LJ Melody
Shopping Center
229 Shiloh Road 0.0400 0.0750 First Union
Apartments
230 Silvercreek II 0.0400 0.0750 First Union
Apartments
235 BCM-Westheimer 0.0400 0.0750 First Union
Court Apts.
237 Westheimer House 0.0400 0.0750 First Union
238 Woodwillow 0.0400 0.0750 First Union
Townhomes
239 Timbergrove Manor 0.0400 0.0750 First Union
Apts.
242 JMA - Woodcreek 0.0600 0.0750 LJ Melody
Village Apartments
244 SHL - San Antonio 0.0400 0.0750 First Union
Station Apts.
-43-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
245 SHL - Village 2305 Bay Area Bldv. Houston TX 77058 4,900,000 4,891,321.32
Green Apartments
247 Buckingham Manor 1110 & 1160 S. Joliet Aurora CO 80012 1,454,300 1,449,069.93
248 Westec Plaza 625 Digital Drive Plano TX 75075 896,000 893,751.32
249 Marigold I 2303 Goliad Road San Antonio TX 78223 2,095,200 2,087,751.86
Apartments
250 Belfonti-Stonebridge 157-161 Pinney Street Ellington CT 06029 1,450,000 1,444,802.61
Apartments
251 Glenbrook 600 West Pioneer Parkway Arlington TX 76010 2,500,000 2,493,359.85
Townhomes
252 Belfonti-Greenbriar 110 Falls Terrace Watertown CT 06779 4,350,000 4,334,407.84
Hills Apartments
253 Wilshire Villa 4245 5th Avenue South Lake Charles LA 70605 2,400,000 2,397,569.11
Apartments
254 Colinas Business 4320 North Belt Line Irving TX 75038 1,670,000 1,667,263.19
Park Road
255 Grayridge 5625 Bissonnet Street Houston TX 77081 1,225,000 1,222,721.30
Apartments
256 Bay Towers 1203 Market Street Pascagoula MS 39567 1,550,000 1,543,761.39
258 Berkeley Heights 396 Springfield Avenue Berkeley NJ 07922 2,500,000 2,492,720.38
Grand Union Heights
261 Coca-Cola 2540 W. Pennway Kansas City MO 64108 1,950,000 1,946,542.95
Building-Industrial
260 Homestead Lodge 13300 York Center Drive Charlotte NC 28273 2,100,000 2,094,256.70
269 Cordele Corners 1411 East 16th Avenue Cordele GA 31015 2,175,000 2,171,066.42
Shopping Center
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
245 SHL - Village 38,233.78 8.6600 45 357 8/1/00 No 225 per unit 8.5400
Green Apartments
247 Buckingham Manor 12,224.36 9.0200 56 296 7/1/01 No 250 per unit 8.9000
248 Westec Plaza 7,784.77 9.4300 57 297 8/1/01 No 0.15 per sq. ft. 9.3100
249 Marigold I 17,712.15 9.0900 80 296 7/1/03 No 250 per unit 8.9700
Apartments
250 Belfonti-Stonebridge 12,208.09 9.0400 116 296 7/1/06 No 250 per unit 8.9200
Apartments
251 Glenbrook 21,134.20 9.0900 117 297 8/1/06 No 280 per unit 8.9700
Townhomes
252 Belfonti-Greenbriar 36,624.27 9.0400 116 296 7/1/06 No 250 per unit 8.9200
Hills Apartments
253 Wilshire Villa 19,970.71 9.3800 118 358 9/1/06 No 250 per unit 9.2600
Apartments
254 Colinas Business 14,625.58 9.5300 58 298 9/1/01 No 0.15 per sq. ft. 9.4100
Park
255 Grayridge 10,087.91 8.7700 118 298 9/1/06 No 225 per unit 8.6300
Apartments
256 Bay Towers 14,875.77 9.9200 237 237 8/1/16 No 250 per unit 9.8000
258 Berkeley Heights 22,896.67 9.2500 118 238 9/1/06 Yes 0.22 per sq. ft. 9.1300
Grand Union
261 Coca-Cola 16,444.52 9.0600 118 298 9/1/06 No 0.15 per sq. ft. 8.9400
Building-Industrial
260 Homestead Lodge 19,905.04 9.7400 238 238 9/1/16 No 4% of gross rev. 9.6200
269 Cordele Corners 18,163.24 8.9400 178 298 9/1/11 No 0.24 per sq. ft. 8.8200
Shopping Center
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
245 SHL - Village 0.0400 0.0750 First Union
Green Apartments
247 Buckingham Manor 0.0400 0.0750 First Union
248 Westec Plaza 0.0400 0.0750 First Union
249 Marigold I 0.0400 0.0750 First Union
Apartments
250 Belfonti-Stonebridge 0.0400 0.0750 First Union
Apartments
251 Glenbrook 0.0400 0.0750 First Union
Townhomes
252 Belfonti-Greenbriar 0.0400 0.0750 First Union
Hills Apartments
253 Wilshire Villa 0.0400 0.0750 First Union
Apartments
254 Colinas Business 0.0400 0.0750 First Union
Park
255 Grayridge 0.0600 0.0750 LJ Melody
Apartments
256 Bay Towers 0.0400 0.0750 First Union
258 Berkeley Heights 0.0400 0.0750 First Union
Grand Union
261 Coca-Cola 0.0400 0.0750 First Union
Building-Industrial
260 Homestead Lodge 0.0400 0.0750 First Union
269 Cordele Corners 0.0400 0.0750 First Union
Shopping Center
-44-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
259 College Park S.R. 696 (North Earl Shippensburg PA 17257 2,100,000 2,096,270.83
Apartments Street)
284 Rodeo Square 6700 Dairy Ashford Houston TX 77072 6,960,000 6,951,379.74
Apartments
282 Super 8 Motel 3617 N. Pan Am San Antonio TX 78219 1,650,000 1,645,658.69
Expressway (aka I-35)
265 Oxford-Runaway 8242 Runaway Bay Drive Charlotte NC 28212 9,259,000 9,247,508.82
Bay Apartments
263 Oxford-Runaway 1480 Runaway Bay Drive Columbus OH 43204 4,522,000 4,516,387.83
Bay II Apartments
264 Oxford - Hunters 2550 Steeple Chase Drive Miamisburg OH 45342 9,081,000 9,069,729.74
Chase Apartments
266 Oxford - Island 2225 Montego Blvd Columbus OH 43235 10,120,000 10,107,440.25
Club Apartments
267 Oxford-Oaks at 3800 Woodbridge Blvd Fairfield OH 45014 11,070,000 11,056,261.22
Woodbridge I Apts
281 Cedar Grove 1A Whippoorwill Way Mantua NJ 08051 2,430,000 2,425,619.80
Mobile Home Park
279 American Trade 6627 Maple Avenue Dallas TX 75226 1,425,000 1,421,440.19
Institute
285 Copper Tree 350 Ramapo Valley Road Oakland NJ 07436 9,000,000 8,990,151.56
Shopping Plaza
286 Las Colinas Tech 2039 Walnut Hill Lane Irving TX 75038 1,400,000 1,397,777.97
Center
274 KFS-Sunset Pointe 465 West Clemmens Lane Fallbrook CA 92028 3,000,000 2,996,374.72
Apartments
222 Pinecrest 2035 E. Pinetree Thomasville GA 31792 1,085,000 1,080,421.65
Apartments Boulevard
277 KFS-Sycamore 820 Sycamore Avenue Vista CA 92083 11,468,600 11,454,741.05
Ridge Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
259 College Park 17,695.08 9.0500 118 298 9/1/06 No 325 per unit 8.9300
Apartments
284 Rodeo Square 53,073.08 8.4100 34 358 9/1/99 No 250 per unit 8.2900
Apartments
282 Super 8 Motel 15,966.61 10.0400 238 238 9/1/16 No 4% of gross rev. 9.9200
265 Oxford-Runaway 70,538.55 8.4000 118 358 9/1/06 No 254 per unit 8.2800
Bay Apartments
263 Oxford-Runaway 34,450.30 8.4000 118 358 9/1/06 No 284 per unit 8.2800
Bay II Apartments
264 Oxford - Hunters 69,182.48 8.4000 118 358 9/1/06 No 250 per unit 8.2800
Chase Apartments
266 Oxford - Island 77,097.97 8.4000 118 358 9/1/06 No 250 per unit 8.2800
Club Apartments
267 Oxford-Oaks at 84,335.43 8.4000 118 358 9/1/06 No 250 per unit 8.2800
Woodbridge I Apts
281 Cedar Grove 20,325.95 8.9600 178 298 9/1/11 No 50 per pad 8.8400
Mobile Home Park
279 American Trade 14,983.56 9.6200 179 179 10/1/11 No 0.15 per sq. ft. 9.5000
Institute
285 Copper Tree 72,480.80 9.0100 118 358 9/1/06 No 0.15 per sq. ft. 8.8900
Shopping Plaza
286 Las Colinas Tech 12,446.53 9.7200 238 298 9/1/16 No 0.04 per sq. ft. 9.6000
Center
274 KFS-Sunset Pointe 23,131.22 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Apartments
222 Pinecrest 9,549.15 9.3100 272 272 7/1/19 No 268 per unit 9.1900
Apartments
277 KFS-Sycamore 88,427.56 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Ridge Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
259 College Park 0.0400 0.0750 First Union
Apartments
284 Rodeo Square 0.0400 0.0750 First Union
Apartments
282 Super 8 Motel 0.0400 0.0750 First Union
265 Oxford-Runaway 0.0400 0.0750 First Union
Bay Apartments
263 Oxford-Runaway 0.0400 0.0750 First Union
Bay II Apartments
264 Oxford - Hunters 0.0400 0.0750 First Union
Chase Apartments
266 Oxford - Island 0.0400 0.0750 First Union
Club Apartments
267 Oxford-Oaks at 0.0400 0.0750 First Union
Woodbridge I Apts
281 Cedar Grove 0.0400 0.0750 First Union
Mobile Home Park
279 American Trade 0.0400 0.0750 First Union
Institute
285 Copper Tree 0.0400 0.0750 First Union
Shopping Plaza
286 Las Colinas Tech 0.0400 0.0750 First Union
Center
274 KFS-Sunset Pointe 0.0600 0.0750 LJ Melody
Apartments
222 Pinecrest 0.0400 0.0750 First Union
Apartments
277 KFS-Sycamore 0.0600 0.0750 LJ Melody
Ridge Apartments
-45-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
273 KFS-Sunset 1456 Alturas Street Fallbrook CA 92028 2,442,400 2,439,448.54
Terrace Apartments
276 KFS-Sunset 3634 College Boulevard Oceanside CA 92056 5,650,000 5,643,172.40
Village Apartments
232 EW - Sorrento 10350-60 Sorrento San Diego CA 92121 2,450,000 2,445,213.34
Creek Industrial Valley Road
Park
233 EW - Sorrento 10635-37-39 Roselle San Diego CA 92121 1,600,000 1,596,807.73
Roselle Street
Industrial Park
231 Solarium 9275 LBJ Freeway Dallas TX 75243 1,500,000 1,480,738.65
Apartments
272 KFS-Sunset Trails 959 Postal Way Vista CA 92083 1,700,000 1,698,147.46
Apartments
278 KFS-Sunset 910-975 Del Dios Highway Escondido CA 92083 14,039,000 14,022,034.92
Apartments
208 Courtyard 15025 Saticoy Street Van Nuys CA 91405 1,050,000 1,047,918.21
Apartments
332 Summer Street 1111 & 1177 Summer Stamford CT 06905 7,620,000 7,613,822.65
Office Building Street
335 Cooper Park 812 Cooper Square Circle Arlington TX 76013 2,920,000 2,918,470.27
Apartments
356 Prospect Plaza 401 Jefferson Street Frederick MD 21701 4,155,000 4,151,721.53
339 Twin Parks Estates 800 West Harris Road Arlington TX 76017 2,320,000 2,318,071.10
262 22601 Pacific 22601 Pacific Coast Malibu CA 90265 2,450,000 2,439,960.03
Coast Highway Ctr Highway
227 Seneca Village 3201 East Seneca St. Tucson AZ 85716 3,000,000 2,995,138.75
Apartments
257 Pioneer Point 216 W. Pioneer Parkway Arlington TX 76010 1,200,000 1,195,825.18
Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
273 KFS-Sunset 18,831.90 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Terrace Apartments
276 KFS-Sunset 43,563.79 8.5300 82 358 9/1/03 No 220 per unit 8.3900
Village Apartments
232 EW - Sorrento 20,762.00 9.5900 116 356 7/1/06 No 0.15 per sq. ft. 9.4500
Creek Industrial
Park
233 EW - Sorrento 13,442.00 9.4900 116 356 7/1/06 No 0.15 per sq. ft. 9.3500
Roselle
Industrial Park
231 Solarium 15,654.32 9.4900 175 175 6/1/11 No 250 per unit 9.3700
Apartments
272 KFS-Sunset Trails 13,715.30 9.0300 118 358 9/1/06 No 200 per unit 8.8900
Apartments
278 KFS-Sunset 108,246.39 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Apartments
208 Courtyard 8,844.30 9.5200 116 356 7/1/06 No 225 per unit 9.3800
Apartments
332 Summer Street 66,946.85 9.5700 119 299 10/1/06 No 0.15 per sq. ft. 9.4500
Office Building
335 Cooper Park 23,916.40 9.2000 239 359 10/1/16 No 269 per unit 9.0800
Apartments
356 Prospect Plaza 36,968.60 9.7300 83 299 10/1/03 No 0.15 per sq. ft. 9.6100
339 Twin Parks Estates 20,140.90 9.4200 119 299 10/1/06 No 50 per pad 9.3000
262 22601 Pacific 21,576.12 9.6000 79 295 6/1/03 No 0.15 per sq. ft. 9.4800
Coast Highway Ctr
227 Seneca Village 24,333.20 9.0900 117 357 8/1/06 No 250 per unit 8.9500
Apartments
257 Pioneer Point 10,251.75 9.2200 116 296 7/1/06 No 265 per unit 9.1000
Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
273 KFS-Sunset 0.0600 0.0750 LJ Melody
Terrace Apartments
276 KFS-Sunset 0.0600 0.0750 LJ Melody
Village Apartments
232 EW - Sorrento 0.0600 0.0750 LJ Melody
Creek Industrial
Park
233 EW - Sorrento 0.0600 0.0750 LJ Melody
Roselle
Industrial Park
231 Solarium 0.0400 0.0750 First Union
Apartments
272 KFS-Sunset Trails 0.0600 0.0750 LJ Melody
Apartments
278 KFS-Sunset 0.0600 0.0750 LJ Melody
Apartments
208 Courtyard 0.0600 0.0750 LJ Melody
Apartments
332 Summer Street 0.0400 0.0750 First Union
Office Building
335 Cooper Park 0.0400 0.0750 First Union
Apartments
356 Prospect Plaza 0.0400 0.0750 First Union
339 Twin Parks Estates 0.0400 0.0750 First Union
262 22601 Pacific 0.0400 0.0750 First Union
Coast Highway Ctr
227 Seneca Village 0.0600 0.0750 LJ Melody
Apartments
257 Pioneer Point 0.0400 0.0750 First Union
Apartments
-46-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
241 Renaissance III NWC of Pecos & Flamingo Las Vegas NV 89104 17,280,000 17,246,477.80
Shopping Center
226 Scripps Mesa 9961 Erma Road San Diego CA 92131 2,573,700 2,565,937.07
Apartments
319 Enfield Court 16541 Loch Katrine Road Houston TX 77084 1,350,000 1,349,215.22
Apartments
271 Gateway Retail 2500 Gateway Boulevard Federal Way WA 98003 12,750,000 12,725,848.52
Center South
200 AB - Sixty-Five 65 Madison Avenue Morristown NJ 07960 3,691,000 3,672,470.28
Madison Avenue
234 1212 Westheimer 1212 Westheimer Austin TX 78752 2,990,000 2,982,058.38
Apartments
236 AB - Westgate @ 9 Law Drive Fairfield NJ 07004 4,163,000 4,142,239.42
Fairfield
275 KFS-Citrus Sunset 1280 North Citrus Avenue Vista CA 92083 3,660,000 3,655,577.16
Apartments
304 The Olympic NWC Olympic and Santa Monica CA 90404 10,000,000 9,991,838.37
Marketplace Cloverfield
270 Vista Gardens 555 East Fruitvale Hemet CA 92543 2,150,000 2,147,676.51
Apartments
283 Pioneer Way 1035 Pioneer Way El Cajon CA 92020 2,900,000 2,894,789.93
Industrial Park
302 SNE Enterprises 1000 Southview Drive Mosinee WI 54455 9,975,000 9,966,776.06
240 West Palm 501-635 West Palm Avenue Orange CA 92666 3,735,000 3,721,788.44
Industrial Park
246 K&S - Pioneer 2901 West 63rd Avenue Denver CO 80221 1,870,000 1,866,925.42
Village MHP
243 K&S - North 9700 North Riverdale Thornton CO 80229 8,430,000 8,415,069.13
County Village
204 Canyon Center 19307 Soledad Canyon Rd. Santa Clarita CA 91351 13,300,000 13,246,070.99
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
241 Renaissance III 143,137.11 9.1700 117 333 8/1/06 No 0.15 per sq. ft. 9.0300
Shopping Center
226 Scripps Mesa 19,953.92 8.5900 55 355 6/1/01 No 276 per unit 8.4500
Apartments
319 Enfield Court 10,572.28 8.7000 83 359 10/1/03 No 290 per unit 8.5800
Apartments
271 Gateway Retail 104,044.82 8.6600 34 298 9/1/99 No 0.15 per sq. ft. 8.5400
Center
200 AB - Sixty-Five 32,248.14 9.5000 114 294 5/1/06 Yes 0.26 per sq. ft. 9.3600
Madison Avenue
234 1212 Westheimer 25,276.50 9.0900 117 297 8/1/06 No 309 per unit 8.9700
Apartments
236 AB - Westgate @ 36,487.81 9.5400 114 294 5/1/06 No 0.15 per sq. ft. 9.4000
Fairfield
275 KFS-Citrus Sunset 28,220.09 8.5300 82 358 9/1/03 No 225 per unit 8.3900
Apartments
304 The Olympic 87,578.30 9.5300 239 299 10/1/16 No 0.15 per sq. ft. 9.3900
Marketplace
270 Vista Gardens 17,407.79 9.0700 82 358 9/1/03 No 175 per unit 8.9300
Apartments
283 Pioneer Way 24,296.99 8.9800 118 298 9/1/06 No 0.15 per sq. ft. 8.8400
Industrial Park
302 SNE Enterprises 86,943.31 9.4700 119 299 10/1/06 No 0.15 per sq. ft. 9.3500
240 West Palm 31,651.47 9.1200 116 296 7/1/06 No 0.15 per sq. ft. 8.9800
Industrial Park
246 K&S - Pioneer 15,073.36 9.0200 81 357 8/1/03 No 79 per pad 8.8800
Village MHP
243 K&S - North 65,777.71 8.6600 57 357 8/1/01 No 50 per pad 8.5200
County Village
204 Canyon Center 111,039.16 9.0600 175 307 6/1/11 No 0.15 per sq. ft. 8.9200
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
241 Renaissance III 0.0600 0.0750 LJ Melody
Shopping Center
226 Scripps Mesa 0.0600 0.0750 LJ Melody
Apartments
319 Enfield Court 0.0400 0.0750 First Union
Apartments
271 Gateway Retail 0.0400 0.0750 First Union
Center
200 AB - Sixty-Five 0.0600 0.0750 Key Corp
Madison Avenue
234 1212 Westheimer 0.0400 0.0750 First Union
Apartments
236 AB - Westgate @ 0.0600 0.0750 Key Corp
Fairfield
275 KFS-Citrus Sunset 0.0600 0.0750 LJ Melody
Apartments
304 The Olympic 0.0600 0.0750 LJ Melody
Marketplace
270 Vista Gardens 0.0600 0.0750 LJ Melody
Apartments
283 Pioneer Way 0.0600 0.0750 LJ Melody
Industrial Park
302 SNE Enterprises 0.0400 0.0750 First Union
240 West Palm 0.0600 0.0750 LJ Melody
Industrial Park
246 K&S - Pioneer 0.0600 0.0750 LJ Melody
Village MHP
243 K&S - North 0.0600 0.0750 LJ Melody
County Village
204 Canyon Center 0.0600 0.0750 LJ Melody
-47-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
268 Paseo Plaza 2600 West Sahara Avenue Las Vegas NV 89102 5,333,400 5,311,064.50
220 P & K-Olive 6500 - 6502 W. Olive Glendale AZ 85302 1,850,000 1,843,706.44
Gardens Apartments Avenue
216 P&K-Glendale 5902 W. Royal Palm Rd Glendale AZ 85302 1,800,000 1,793,876.54
Shadows
280 Tiger Industrial 4901 & 4929 West Van Phoenix AZ 85043 1,800,000 1,796,755.35
Plaza Buren Street
307 Shilo 11707 N.E. Airport Way Portland OR 97220-1075 14,750,000 14,729,334.62
Inn-Portland
Airport/I-205
299 Shilo Inn-Salem 3304 Market Street NE Salem OR 97301 5,470,000 5,462,336.30
Suites
303 Shilo Inn-Seaside 30 North Promenade Seaside OR 97138 9,510,000 9,496,676.08
Oceanfront Resort
300 Shilo Inn-Tacoma 7414 South Hosmer Street Tacoma WA 98408 6,770,000 6,760,514.94
306 Collegetown Plaza 111-121 Dryden Road Ithaca NY 14850 7,000,000 6,996,152.45
326 The Branson Mall 2206 West State Hwy. 76 Branson MO 65616 3,300,000 3,300,000.00
325 CAP-Clubhouse 3 Clubhouse Circle Storrs CT 06268 1,571,500 1,570,031.59
Apartments
324 CAP-Knollwood Knollwood Acres Road Storrs CT 06268 3,828,000 3,824,422.80
Apartments
323 CAP-Maplewood 1 Carlton Road Storrs CT 06268 1,272,200 1,271,010.83
Apartments
322 CAP-Millbrook 170 Spring Hill Road Storrs CT 06268 436,000 435,592.13
Apartments
321 CAP-Oakwood 114 South Eagleville Storrs CT 06268 257,300 257,059.12
Apartments Road
293 JF Commons West 107 The Commons Ithaca NY 14850 2,200,000 2,198,139.89
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
268 Paseo Plaza 46,486.56 9.4700 115 295 6/1/06 No 0.15 per sq. ft. 9.3300
220 P & K-Olive 14,765.87 8.9100 114 354 5/1/06 No 327 per unit 8.7900
Gardens Apartments
216 P&K-Glendale 14,366.80 8.9100 114 354 5/1/06 No 283 per unit 8.7900
Shadows
280 Tiger Industrial 15,056.26 8.9600 118 298 9/1/06 No 0.15 per sq. ft. 8.8400
Plaza
307 Shilo 137,682.05 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
Inn-Portland
Airport/I-205
299 Shilo Inn-Salem 51,059.04 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
Suites
303 Shilo Inn-Seaside 88,769.92 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
Oceanfront Resort
300 Shilo Inn-Tacoma 63,193.73 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
306 Collegetown Plaza 56,172.55 8.9700 119 359 10/1/06 No 350 per unit 8.8500
326 The Branson Mall 28,010.54 9.1400 120 300 11/1/06 No 0.15 per sq. ft. 9.0200
325 CAP-Clubhouse 12,887.97 8.7200 83 299 10/1/03 No 270 per unit 8.6000
Apartments
324 CAP-Knollwood 31,393.67 8.7200 83 299 10/1/03 No 280 per unit 8.6000
Apartments
323 CAP-Maplewood 10,433.39 8.7200 83 299 10/1/03 No 270 per unit 8.6000
Apartments
322 CAP-Millbrook 3,575.66 8.7200 83 299 10/1/03 No 270 per unit 8.6000
Apartments
321 CAP-Oakwood 2,110.13 8.7200 83 299 10/1/03 No 271 per unit 8.6000
Apartments
293 JF Commons West 18,946.78 9.3200 119 299 10/1/06 No 300 per unit 9.2000
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
268 Paseo Plaza 0.0600 0.0750 LJ Melody
220 P & K-Olive 0.0400 0.0750 First Union
Gardens Apartments
216 P&K-Glendale 0.0400 0.0750 First Union
Shadows
280 Tiger Industrial 0.0400 0.0750 First Union
Plaza
307 Shilo 0.0600 0.0750 Key Corp
Inn-Portland
Airport/I-205
299 Shilo Inn-Salem 0.0600 0.0750 Key Corp
Suites
303 Shilo Inn-Seaside 0.0600 0.0750 Key Corp
Oceanfront Resort
300 Shilo Inn-Tacoma 0.0600 0.0750 Key Corp
306 Collegetown Plaza 0.0400 0.0750 First Union
326 The Branson Mall 0.0400 0.0750 First Union
325 CAP-Clubhouse 0.0400 0.0750 First Union
Apartments
324 CAP-Knollwood 0.0400 0.0750 First Union
Apartments
323 CAP-Maplewood 0.0400 0.0750 First Union
Apartments
322 CAP-Millbrook 0.0400 0.0750 First Union
Apartments
321 CAP-Oakwood 0.0400 0.0750 First Union
Apartments
293 JF Commons West 0.0400 0.0750 First Union
-48-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
350 Horwitz-Ramada 13455 SW Canyon Road Beaverton OR 97005 4,900,000 4,900,000.00
Inn - Beaverton
351 Horwitz-Ramada 1550 NW 9th Street Corvallis OR 97330 5,750,000 5,750,000.00
Inn - Corvallis
352 Horwitz-Ramada 6221 NE 82nd Street Portland OR 97220 7,800,000 7,800,000.00
Inn - Portland
353 Ramada Inn - 2200 Fifth Avenue Seattle WA 98121 7,850,000 7,850,000.00
Seattle
331 Holiday Inn 4100 Salida Blvd Modesto CA 95358 2,600,000 2,600,000.00
Express
316 Howard Johnson - 2375 Delk Road Marietta GA 30067 2,500,000 2,500,000.00
Delk Road
338 Southgate/Meadowlark 6405 - 6601 Arden Road Amarillo TX 79109 1,520,000 1,518,664.41
Mobile Home Park
313 Parker Plaza West 2109 West Parker Road Plano TX 75080 3,500,000 3,500,000.00
312 Parkridge Village 5252 Orange Avenue San Diego CA 92115 2,650,000 2,648,509.73
Apartments
310 Redbird Plaza 4099-4107 Camp Wisdom Dallas TX 75237 1,250,000 1,250,000.00
Shopping Center Road
291 Days Inn Six Flags 95 South Service Road Austell GA 30001 1,800,000 1,797,705.42
346 Chapel Creek 3410 Hilalgo Dallas TX 75220 2,000,000 2,000,000.00
Apartments
320 Clackamas Corner 11750 SE 82nd Ave. Portland OR 97266 1,800,000 1,800,000.00
311 PETsMART 3195 Hempstead Turnpike Levittown NY 11546 1,440,000 1,440,000.00
347 Park Springs 2002 West Irving Blvd. Irving TX 75061 1,425,000 1,425,000.00
Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
350 Horwitz-Ramada 46,155.46 9.6500 240 240 11/1/16 No 4% of gross rev. 9.5300
Inn - Beaverton
351 Horwitz-Ramada 53,324.77 9.6500 252 252 11/1/17 No 4% of gross rev. 9.5300
Inn - Corvallis
352 Horwitz-Ramada 73,471.96 9.6500 240 240 11/1/16 No 4% of gross rev. 9.5300
Inn - Portland
353 Ramada Inn - 70,632.00 9.4300 264 264 11/1/18 No 4% of gross rev. 9.3100
Seattle
331 Holiday Inn 25,297.63 10.1200 240 240 11/1/16 No 4% of gross rev. 10.0000
Express
316 Howard Johnson - 23,861.12 9.8400 180 240 11/1/11 No 4% of gross rev. 9.7200
Delk Road
338 Southgate/Meadowlark 12,849.59 9.0900 59 299 10/1/01 No 50 per pad 8.9700
Mobile Home Park
313 Parker Plaza West 29,347.91 8.9900 120 300 11/1/06 No 0.15 per sq. ft. 8.8700
312 Parkridge Village 21,056.10 8.8600 59 359 10/1/01 No 250 per unit 8.7200
Apartments
310 Redbird Plaza 10,610.05 9.1400 120 300 11/1/06 No 0.15 per sq. ft. 9.0200
Shopping Center
291 Days Inn Six Flags 17,669.58 10.2500 239 239 10/1/16 No 4% of gross rev. 10.1300
346 Chapel Creek 16,100.47 8.8400 120 336 11/1/06 No 250 per unit 8.7200
Apartments
320 Clackamas Corner 15,676.52 9.4600 120 300 11/1/06 No 0.15 per sq. ft. 9.3200
311 PETsMART 12,601.26 9.5200 120 300 11/1/06 No 0.15 per sq. ft. 9.4000
347 Park Springs 11,647.85 8.6800 120 300 11/1/06 No 250 per unit 8.5600
Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
350 Horwitz-Ramada 0.0400 0.0750 First Union
Inn - Beaverton
351 Horwitz-Ramada 0.0400 0.0750 First Union
Inn - Corvallis
352 Horwitz-Ramada 0.0400 0.0750 First Union
Inn - Portland
353 Ramada Inn - 0.0400 0.0750 First Union
Seattle
331 Holiday Inn 0.0400 0.0750 First Union
Express
316 Howard Johnson - 0.0400 0.0750 First Union
Delk Road
338 Southgate/Meadowlark 0.0400 0.0750 First Union
Mobile Home Park
313 Parker Plaza West 0.0400 0.0750 First Union
312 Parkridge Village 0.0600 0.0750 LJ Melody
Apartments
310 Redbird Plaza 0.0400 0.0750 First Union
Shopping Center
291 Days Inn Six Flags 0.0400 0.0750 First Union
346 Chapel Creek 0.0400 0.0750 First Union
Apartments
320 Clackamas Corner 0.0600 0.0750 Key Corp
311 PETsMART 0.0400 0.0750 First Union
347 Park Springs 0.0400 0.0750 First Union
Apartments
-49-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
357 Glenwood Village 12611 Montgomery Albuquerque NM 87111 2,000,000 2,000,000.00
S.C. Boulevard
358 Casa Claire 1125 Hillcrest Street Mesquite TX 75149 2,450,000 2,450,000.00
Apartments
334 Comfort Inn - 1023 East 23rd Street Panama City FL 32405 3,161,000 3,161,000.00
Panama City
295 Westside 2647 Broadway New York NY 10025 2,500,000 2,500,000.00
Apartments
297 Rancho Niguel 25500 Rancho Niguel Road Laguna Niguel CA 92677 3,739,000 3,739,000.00
Medical Building
289 Days Inn North 4610 Rusina Rd. Colorado CO 80907 1,720,000 1,720,000.00
Springs
296 Days Inn South 2850 South Circle Drive Colorado CO 80906 2,300,000 2,300,000.00
Springs
359 Metro Office 202 West Berry Street Fort Wayne IN 46802 5,300,000 5,300,000.00
Building
309 Riverside 2410 Riverside Drive Austin TX 78741 4,000,000 4,000,000.00
Shopping Center
348 Comfort Inn 7700 Two Notch Road Columbia SC 29223 1,850,000 1,850,000.00
Columbia
349 Comfort Inn Sugar 5111 North Service Road Charlotte NC 28269 2,200,000 2,200,000.00
Creek
333 Melbourne Village 1270 North Wickham Road Melbourne FL 32935 4,600,000 4,600,000.00
Plaza
360 Park Place 3761 Nova Road Port Orange FL 32119 4,300,000 4,300,000.00
Shopping Center
345 Estes - Best 8738 International Drive Orlando FL 32819 21,000,000 21,000,000.00
Western - Orlando
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
357 Glenwood Village 16,688.16 8.9300 120 300 11/1/06 No 0.15 per sq. ft. 8.8100
S.C.
358 Casa Claire 19,872.12 9.0900 120 360 11/1/06 No 250 per unit 8.9500
Apartments
334 Comfort Inn - 31,219.79 10.3400 240 240 11/1/16 No 4% of gross rev. 10.2200
Panama City
295 Westside 20,706.68 8.8400 120 300 11/1/06 No 250 per unit 8.7000
Apartments
297 Rancho Niguel 30,935.28 9.1100 120 330 11/1/06 No 0.15 per sq. ft. 8.9700
Medical Building
289 Days Inn North 16,941.68 10.3000 240 240 11/1/16 No 4% of gross rev. 10.1800
296 Days Inn South 22,654.58 10.3000 240 240 11/1/16 No 4% of gross rev. 10.1800
359 Metro Office 44,804.51 9.0900 120 300 11/1/06 No 0.15 per sq. ft. 8.9500
Building
309 Riverside 40,976.18 9.1700 180 180 11/1/11 No 0.20 per sq. ft. 9.0300
Shopping Center
348 Comfort Inn 17,523.23 9.7300 240 240 11/1/16 No 4% of gross rev. 9.6100
Columbia
349 Comfort Inn Sugar 20,550.00 9.5300 240 240 11/1/16 No 4% of gross rev. 9.4100
Creek
333 Melbourne Village 37,126.30 8.7700 120 324 11/1/06 No 0.15 per sq. ft. 8.6300
Plaza
360 Park Place 34,406.83 8.6700 120 324 11/1/06 No 0.20 per sq. ft. 8.5300
Shopping Center
345 Estes - Best 195,462.07 9.8900 264 264 11/1/18 No 4% of gross rev. 9.7700
Western - Orlando
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
357 Glenwood Village 0.0400 0.0750 First Union
S.C.
358 Casa Claire 0.0600 0.0750 LJ Melody
Apartments
334 Comfort Inn - 0.0400 0.0750 First Union
Panama City
295 Westside 0.0600 0.0750 Key Corp
Apartments
297 Rancho Niguel 0.0600 0.0750 LJ Melody
Medical Building
289 Days Inn North 0.0400 0.0750 First Union
296 Days Inn South 0.0400 0.0750 First Union
359 Metro Office 0.0600 0.0750 Key Corp
Building
309 Riverside 0.0600 0.0750 LJ Melody
Shopping Center
348 Comfort Inn 0.0400 0.0750 First Union
Columbia
349 Comfort Inn Sugar 0.0400 0.0750 First Union
Creek
333 Melbourne Village 0.0600 0.0750 Key Corp
Plaza
360 Park Place 0.0600 0.0750 Key Corp
Shopping Center
345 Estes - Best 0.0400 0.0750 First Union
Western - Orlando
-50-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
342 Estes - HoJo 6051 Irlo Bronson Kissimmee FL 34747 5,110,000 5,110,000.00
Main Gate - Memorial Highway
Kissimmee
361 Magnolia Gardens 15, 17 & 19 Fordyce New MIlford CT 06776 1,370,000 1,370,000.00
Court
362 Promenade Center 4440 South Maryland Las Vegas NV 89119 2,870,000 2,870,000.00
Parkway
330 911 North Buffalo 911 North Buffalo Drive Las Vegas NV 89128 2,575,000 2,575,000.00
Drive
344 Town Center Plaza SEC Fred Waring Dr. & Palm Desert CA 92260 9,350,000 9,350,000.00
Town Ctr
336 Naugatuck 50 Rado Drive Naugatuck CT 06770 3,211,000 3,211,000.00
Industrial
292 Multiflex VI 2540 Alamo, S.E. & 2500 Albuquerque NM 87106 2,215,000 2,215,000.00
Yale Blvd. S.E
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
342 Estes - HoJo 47,562.44 9.8900 264 264 11/1/18 No 4% of gross rev. 9.7700
Main Gate -
Kissimmee
361 Magnolia Gardens 10,748.45 8.7200 120 360 11/1/06 No 250 per unit 8.5800
362 Promenade Center 23,523.15 9.0000 84 330 11/1/03 No 0.15 per sq. ft. 8.8600
330 911 North Buffalo 21,632.51 9.2900 120 330 11/1/06 No 0.15 per sq. ft. 9.1700
Drive
344 Town Center Plaza 73,756.92 8.7800 120 360 11/1/06 No 0.15 per sq. ft. 8.6600
336 Naugatuck 27,431.98 9.2200 120 300 11/1/06 No 0.15 per sq. ft. 9.1000
Industrial
292 Multiflex VI 20,820.59 9.6200 240 240 11/1/16 No 0.15 per sq. ft. 9.5000
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
342 Estes - HoJo 0.0400 0.0750 First Union
Main Gate -
Kissimmee
361 Magnolia Gardens 0.0600 0.0750 Key Corp
362 Promenade Center 0.0600 0.0750 LJ Melody
330 911 North Buffalo 0.0400 0.0750 First Union
Drive
344 Town Center Plaza 0.0400 0.0750 First Union
336 Naugatuck 0.0400 0.0750 First Union
Industrial
292 Multiflex VI 0.0400 0.0750 First Union
-51-
<PAGE>
EXHIBIT C
MLMI 1996-C2
Form of Schedule of Exceptions to Mortgage File Delivery
Control Borrower Document Document Exception
No. Name ID Status Description
- --------- -------------- --------------- --------------- -------------------
C-1
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
__________, 199
State Street Bank and Trust Company 225 Franklin Street Boston, Massachusetts
02110 (Attention: MLMI Series 1996-C2) Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Custodian under a certain Pooling and Servicing Agreement dated as of
November 1, 1996 (the "Pooling and Servicing Agreement"), by and among Merrill
Lynch Mortgage Investors, Inc., as Depositor, First Union National Bank of North
Carolina, as Master Servicer, CRIIMI MAE Services Limited Partnership 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>
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>
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
First Union National Bank
of North Carolina,
as Master Servicer
By:_____________________________________
Name:
Title
D-1-3
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
__________, 199
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts
02110
(Attention: MLMI Series 1996-C2)
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Custodian under a certain Pooling and Servicing Agreement dated as of
November 1, 1996 (the "Pooling and Servicing Agreement"), by and among Merrill
Lynch Mortgage Investors, Inc., as depositor, First Union National Bank of North
Carolina, as Master Servicer and CRIIMI MAE Services Limited Partnership, 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. The Mortgage Loan is being foreclosed.
D-2-1
<PAGE>
________________ 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.
CRIIMI MAE Services
Limited Partnership,
as Special Servicer
By: ____________________________________
Name:
Title:
D-2-2
<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
E-1-1
<PAGE>
to 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 retail, office, industrial and two mixed use multifamily/retail
properties, not less than $0.04 and not more than $0.77 per square foot net
rentable commercial area, (2) in the case of multifamily and three mixed use
multifamily/retail properties, not less than $150 or more than $350 per
residential unit per year, depending on the condition of the property, (3) in
the case of hospitality properties, 4% of the gross revenues received by the
property owner on an ongoing basis, (4) in the case of residential healthcare
facilities, $225 to $300 per bed per year and (5) in the case of the mobile home
parks, not less than $31 or more than $79 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>
EXHIBIT E-2
FORM OF UPDATED MORTGAGE LOAN SCHEDULE
E-2-1
<PAGE>
State Street Bank and Trust Company Series:
Corporate Trust Department Report Id:
P.O. Box 778 Doc Id:
Boston, MA 02110
Customer Service
(617) 664-5433
MERRILL LYNCH MORTGAGE PASS-THROUGH CERTIFICATES
Series 1996-C2
Payment Date:
Updated Mortgage Loan Schedule (Part 1 of ___)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Closing
- -----------------------------------------------------------------------------------------------------------
Loan Property Loan Sched. Prin. Note Amount Sched. Monthly
ID Name City State Type Balance Rate Term Term P & I Pymt
- -----------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
0 XX XX XX 0 $0.00 0.00 0 0 $0.00
- -----------------------------------------------------------------------------------------------------------
</TABLE>
- ------------------------------------------------------------------
Current
- ------------------------------------------------------------------
Loan Sched. Note Sched.
ID Prin. Rate Term Amount Monthly
Balance P & I Pymt
- ------------------------------------------------------------------
0 $0.00 0.00 0 0 $0.00
- ------------------------------------------------------------------
Loan Type Code: 01=Balloon Loan, 02=Fully Amortizing Loan
<PAGE>
State Street Bank and Trust Company
CERTIFICATES Series:
Corporate Trust Department Report Id:
P.O. Box 778 Doc Id:
Boston, MA 02110
Customer Service
(617) 664-5433
MERRILL LYNCH MORTGAGE PASS-THROUGH
Series 1996-C2
Payment Date:
Updated Mortgage Loan Schedule (Part 3 of ___)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Performance History
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Times Since Closing
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Property Current Loan Payoff 30-50 days 60-89 days 90+ days Spec
ID Name Status Date Delinq Delinq Delinq Serviced Workout/Mod Mod Date
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
0 XX 0 00/00/00 0 0 0 0 0 00/00/00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------------------------------------
Performance History
- ---------------------------------------------
Number of Times Since Closing
- ---------------------------------------------
Loan
ID Foreclosure Bankruptcy REO
- ---------------------------------------------
0 0 0 0
Current Loan Status Code: 01=Specially Serviced, 02=In Process of Foreclosure,
03=Bankruptcy, 04=REO, 05=Prepaid in Full, 06=DPO, 07=Foreclosure Sale,
08=Bankruptcy Sale, 09=REO Disposition, 10=Modification/Workout
<PAGE>
Corporate Trust Department Report Id:
P.O. Box 778 Doc Id:
Boston, MA 02110
Customer Service
(617) 664-5433
Series 1996-C2
Payment Date:
Updated Mortgage Loan Schedule (Part 2 of ___)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Most Current
- -----------------------------------------------------------------------------------------------------------------
Replace- Tenant Date of
Loan Property Prop. Total Total ment Capital Leasing Improve- Last
ID Name State Type Revenues Expenses Reserves Expenditures Commissions ments NOI Finan DSCR
Stmnt
- -----------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0 XX XX 0 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00$0.00 00/00/00 0.00
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
Reserves
Loan Appraised Appraised Appraised Occupancy Occupancy at Reserves
ID Value Date LTV % % Date Closing Current
- ----------------------------------------------------------------------------
0 $0.00 00/00/00 0.00 0.00 00/00/00 0.00 0.00
- ----------------------------------------------------------------------------
Property Type Codes: 01=Industrial/Warehouse, 02=Lodging, 03=Manufactured
Housing, 04=Multifamily, 05=Office, 06=Other Commercial, 07=Retail, 08=Senior
Housing, 09=Medical Office, 10=Mobile Home Park, 11=Anchored Retail, 12=Mised
Use, 13=Office/Warehouse, 14=Specialty, 15=Unknown
<PAGE>
State Street Bank and Trust Company Series:
Corporate Trust Department Report Id:
P.O. Box 778 Doc Id:
Boston, MA 02110
Customer Service
(617) 664-5433
MERRILL LYNCH MORTGAGE PASS THROUGH CERTIFICATES
Series 1996-C2
Payment Date:
Updated Mortgage Loan Schedule (Part 2 of ___)
<PAGE>
EXHIBIT F
COPY OF LETTER OF REPRESENTATIONS AMONG
DEPOSITOR, TRUSTEE AND INITIAL DEPOSITORY
<PAGE>
Letter of Representations
[To be Completed by Issuer and Trustee]
Merrill Lynch Mortgage Investors, Inc.
--------------------------------------
[Name of Issuer]
State Street Bank and Trust Company
-----------------------------------
[Name of Trustee]
November 25, 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-C2
Class A-1, Class A-2, Class A-3, Class IO, Class B, Class C,
Class D, Class E, Class F, Class G, and Class H
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 Securities pursuant to a Pooling and Servicing Agreement
dated November 1, 1996 (the "Document"). Merrill Lynch, Pierce Fenner & Smith
Incorporated is 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 November 25, 1996, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for each stated maturity of the Securities in the face
amounts set forth on Schedule A hereto, the total of which represents 100% of
the principal amount of such Securities. If, however, the aggregate principal
amount of any maturity 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. Each Security
certificate shall bear the following legend:
F-2
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York- corporation ("DTC"), to
Issuer or its agent for registration of transfer, `, 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 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 a full or partial redemption, Issuer or Trustee shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication 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 designated 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 the Publication Date. Issuer or 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 to verify subsequently the use of
such means and the timeliness of such notice.) The Publication Date shall be not
less than 30 days nor more than 60 days prior to the redemption date or, in the
case of an advance refunding, the date that the proceeds are deposited in
escrow. 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:
F-3
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
4. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Trustee
to Security holders specifying the terms of the tender and the Publication Date
of such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to the
above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
5. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
6. Trustee shall send DTC written notice with respect to the dollar amount
per $1,000 original face value (or other minimum authorized denomination if less
than $1,000 face value) 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. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), 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:
F-4
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
7. [Note: Issuer must represent one of the following, and cross out the
other:] [The interest accrual period is record date to record date.] [The
interest accrual period is payment date to payment date.]
8. Trustee must provide DTC, no later than noon (Eastern Time) on the
payment date, CUSIP numbers for each issue for which payment is being sent, as
well as the dollar amount of the payment for each issue. Notification of payment
details should be sent using automated communications.
9. 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, no later than 2:30 p.m.
(Eastern Time) on each payment date (in accordance with existing arrangements
between Issuer or Trustee and DTC. Absent any other arrangements between Issuer
or Trustee and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA 021000021
For credit to A/C The Depository Trust Company
Dividend Deposit Account 066-026776
Issuer or Trustee shall provide interest payment information to a standard
announcement service subscribed to by DTC. In the unlikely event that no such
service exists, Issuer or Trustee shall provide interest payment information
directly to DTC in advance of the interest payment date as soon as the
information is available. This information should be conveyed directly to DTC
electronically. If electronic transmission is not available, absent any other
arrangements between Trustee and DTC, such information should be sent by
telecopy to DTC's Dividend Department at (212) 709-1723 or (212) 709-1686, and
receipt of such notices shall be confirmed by telephoning (212) 709-1270.
Notices to DTC pursuant to the above by mail or by any other means shall be sent
to:
Manager; Announcements
F-5
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
10. DTC shall receive maturity and redemption payments allocated with
respect to each CUSIP number on the payable date in same-day funds by 2:30 p.m.
(Eastern Time). Absent any other arrangements between Trustee and DTC, such
payments shall be wired as follows:
The Chase Manhattan Bank
ABA 021000021
For credit to A/C The Depository Trust Company
Redemption Account 066-027306
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 Trustee.
11. DTC shall receive all reorganization payments and CUSIP-level detail
resulting from corporate actions (such as tender offers, remarketings, or
mergers) on the first payable date in same-day funds by 2:30 p.m. (Eastern
Time). Absent any other arrangements between Trustee and DTC. such payments
shall be wired as follows:
The Chase Manhattan Bank
ABA 021000021
For credit to A/C The Depository Trust Company
Reorganization Account 066-027608
12. 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.
13. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Trustee's
invitation) 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
F-6
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
maturity, in which case the certificate will be presented to Issuer or Trustee
prior to payment, if required.
14. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Trustee
shall notify DTC of the availability of certificates. In such event, Issuer or
Trustee shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
15. 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.
16. 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.
17. Nothing herein shall be deemed to require Trustee to advance funds on
behalf of Issuer.
F-7
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Notes:
A. If there is a Trustee (as defined in this Letter of Representations), Trustee
as well undertakes to as Issuer must sign this Letter. If there is no Merrill
Inc. Trustee, in signing this Letter Issuer itself perform all of the
obligations set forth herein.
B. Schedule B contains statements that DTC believes accurately describe DTC, the
method of effecting book-entry transfers of securities distributed through DTC,
and certain related matters.
Very truly yours,
Merrill Lynch Mortgage Investors,
(Issuer)
By: ________________________________
(Authorized Officer's Signature)
State Street Bank and Trust Company
(Trustee)
By: _________________________________
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: _________________________________
cc: Underwrite
Underwriter's Counsel
F-8
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Merrill Lynch Mortgage Investors, Inc.
Mortgage Pass-Through Certificates, Series 1996-C2
(Describe Issue)
Class CUSIP Number Principal Amount Maturity Date Interest Rate
- ----- ------------ ---------------- ------------- -------------
A-1 589-929-MC9 $311,042,000 Nov. 21, 2028 6.69%
A-2 589-929-MD7 130,587,000 Nov. 21, 2028 6.82%
A-3 589-929-ME5 343,805,000 Nov. 21, 2028 6.96%
B 589-929-MF2 68,299,000 Nov. 21, 2028 6.96%
C 589-929-MGO 62,607,000 Nov. 21, 2028 6.96%
D 589-929-MH8 56,915,000 Nov. 21, 2028 6.96%
E 589-929-MJ4 28,458,000 Nov. 21, 2028 6.96%
IO 589-929-MK1 N/A Nov. 21, 2028 --
F 589-929-ML9 62,607,000 Nov. 21, 2028 6.96%
G 589-929-MM7 39,841,000 Nov. 21, 2028 6.96%
H 589-929-MN5 34,147,859 Nov. 21, 2028 6.96%
F-9
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
SCHEDULE B
----------
SAMPLE OFFICIAL STATEMENT 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.
F-10
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 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 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
F-11
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 such Participant
and not of DTC, Trustee, or 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 Issuer or Trustee, 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 Trustee (or
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 Trustee [or Tender/Remarketing Agent]. The
requirement for physical delivery of Securities in connection with an optional
tender or a mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants on DTC's records
and followed by a book-entry credit of tendered Securities to Trustee (or
Tender/Remarketing Agent's] DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or 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. 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 Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
F-12
<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-C2 Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
E, Class F (See attached Schedule A for CUSIP Nos.)
CUSIP
The Depository Trust Company (DTC) acknowledges receipt from State Street Bank
and Trust Company (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-13
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
without the specific approval of the Agent pursuant to this Safekeeping
Agreement.
State Street Bank and The Depository Trust Company
Trust Company
The Agent
By:___________________________ By:___________________________
Trustee for Merrill
Lynch Mortgage Investors,
Inc., MPTC, Series 1995-C2
Title: Vice President Title:________________________
Date:__________________________ Date:_________________________
AUTHORIZED REPRESENTATIVE
OF TRUSTEE/AGENT
State Street Bank and
Trust Company (617) 664-5500
- --------------------- --------------------- ---------------
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-14
<PAGE>
SCHEDULE A
MERRILL LYNCH MORTGAGE INVESTORS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-C2
Designation CUSIP No. Rate Denomination Maturity Date
----------- --------- ---- ------------ -------------
($)
Class A-1, No. 1 589-929-MC9 6.69% 200,000,000 Nov. 21, 2028
Class A-1, No. 2 589-929-MC9 6.69% 111,042,000 Nov. 21, 2028
Class A-2, No. 1 589-929-ME5 6.82% 130,587,000 Nov. 21, 2028
Class A-3, No. 1 589-929-ME5 6.96% 200,000,000 Nov. 21, 2028
Class A-3, No. 2 589-929-ME5 6.96% 143,805,000 Nov. 21, 2028
Class B, No. 1 589-929-MF2 6.96% 68,299,000 Nov. 21, 2028
Class C, No. 1 589-929-MG0 6.96% 62,607,000 Nov. 21, 2028
Class D, No. 1 589-929-MH8 6.96% 56,915,000 Nov. 21, 2028
Class E, No. 1 589-929-MJ4 6.96% 28,458,000 Nov. 21, 2028
Class IO, No. 1 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 2 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 3 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 4 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 5 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 6 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 7 589-929-MK1 N/A 200,000,000 Nov. 21, 2028
Class IO, No. 8 589-929-MK1 N/A 179,937,859 Nov. 21, 2028
F-15
<PAGE>
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
______ __, 199_
State Street Bank and Trust Company
[Address]
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2,
Class the "Certificates")
--------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November 25, 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 November 1, 1996,
among Merrill Lynch Mortgage Investors, Inc., as depositor, First Union National
Bank of North Carolina, as master servicer, CRIIMI MAE Services Limited
Partnership, as special servicer, and State Street Bank and Trust Company, 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
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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>
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
______ __, 199_
State Street Bank and Trust Company
[Address]
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2,
Class (the "Certificates")
-------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November 25, 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 November 1, 1996,
among Merrill Lynch Mortgage Investors, Inc., as depositor, First Union National
Bank of North Carolina, as master servicer, CRIIMI MAE Services Limited
Partnership, as special servicer, and State Street Bank and Trust Company, 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
G-2-1
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificate for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
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>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 State Street Bank and Trust Company 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
G-2-3
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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, 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
G-2-4
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
State or its political subdivisions, for the benefit of its
employees.
O ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
O Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
O Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.) _____________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the 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
G-2-5
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 Transferred
Yes No 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 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
G-2-6
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
G-2-7
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 State Street Bank and Trust Company, 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
G-2-8
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 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).
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 Transferred
Yes No 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
G-2-9
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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
G-2-10
<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-2-11
<PAGE>
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR non-QIBs
______ __, 199_
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificate, Series 1996-C2,
Class (the "Certificates")
-------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ by (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November 25, 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 November 1, 1996,
among Merrill Lynch Mortgage Investors, Inc., as depositor (the "Depositor"),
First Union National Bank of North Carolina, as master servicer, CRIIMI MAE
Services Limited Partnership, as special servicer, and State Street Bank and
Trust Company, 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
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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
G-3-2
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 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
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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>
EXHIBIT H
FORM OF TRANSFEREE LETTER
_____ __, 199_
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2,
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 November 25, 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 November 1, 1996 (the "Pooling and Servicing Agreement"),
among Merrill Lynch Mortgage Investors, Inc., as depositor, First Union National
Bank of North Carolina, as master servicer, CRIIMI MAE Services Limited
Partnership, as special servicer, and State Street Bank and Trust Company, 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>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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>
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-C2, Class [R-I, R-II, R-III] evidencing a ___% Percentage Interest
(the "Class [R-I, R-II, R-III] Certificates"). Capitalized terms used but
not defined herein have the meanings assigned to such terms in the Pooling
and Servicing Agreement dated as of November 1, 1996, among Merrill Lynch
Mortgage Investors, Inc., as Depositor, First Union National Bank of North
Carolina as Master Servicer, CRIIMI MAE Services Limited Partnership, as
Special Servicer, and State Street Bank and Trust Company, 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
I-1-1
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (v) any other Person so designated by the Trustee based upon
an Opinion of Counsel that the holding of an Ownership Interest in a Class
[R-I, R-II, R-III] Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates,
other than such Person, to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of
an Ownership Interest in a Class [R-I, R-II, R-III] Certificate to such
Person. The terms "United States", "State" and "international
organization" shall have the meanings set forth in Section 7701 of the
Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate or trust whose income 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
I-1-2
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 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
I-1-3
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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
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
I-1-4
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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-1-5
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its [Title of Officer] and Authorized Signatory, attested by its
Assistant Secretary, this ____ day of _____, 199_.
[NAME OF OWNER]
By:________________________________
[Name of Officer]
[Title of Officer]
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____ 199.
/s/
--------------------------------------
NOTARY PUBLIC
I-1-6
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
COUNTY OF ______________
STATE OF_______________
My Commission expires the
____ day of _________, 19__.
I-1-7
<PAGE>
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
______________, 199_
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
(Attention: MLMI Series 1996-C2)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2, Class
[R-I, R-II, R-III], evidencing a ____% percentage
interest in the Class to which they belong
-------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
____________________________________ (the "Transferor") to
______________________________________________ (the "Transferees") of the
captioned Class [R-I, R-II, R-III] Certificates (the "Class [R-I, R-II, R-III]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1996, among
Merrill Lynch Mortgage Investors, Inc., as depositor, First Union National Bank
of North Carolina, as master servicer, CRIIMI MAE Services Limited Partnership,
as special servicer, and State Street Bank and Trust Company, as trustee. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby represents and
warrants to you, as Certificate Registrar, that:
I-2-1
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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>
Exhibit J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
___________, 199_
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Standard & Poor's Ratings Agency
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 November 1, 1996 relating to Merrill Lynch
Mortgage Investors Inc., Mortgage Pass-Through Certificates, Series 1996-C2 (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 State
Street Bank and Trust Company, 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>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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,
State Street Bank and Trust Company
By: ______________________________
Title: ____________________________
J-1-2
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Receipt acknowledged:
Fitch Investors Standard & Poor's Duff & Phelps Credit
Service, L.P. Ratings Agency Rating Co.
By:_________________ By:_________________ By:_________________
Title:______________ Title:______________ Title:______________
Date:_______________ Date:_______________ Date:_______________
J-1-3
<PAGE>
EXHIBIT J-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
___________, 199__
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Attention: MLMI Series 1996-C2
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as
of November 1, 1996 relating to Merrill Lynch Mortgage Investors Inc., Mortgage
Pass-Through Certificates, Series 1996-C2 (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>
EXHIBIT K
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
Important - Read instructions on back before filling out form
This FINANCING STATEMENT is presented to a No. of Additional
Filing Officer for filing pursuant to the Sheets Prepared:
Uniform Commercial Code
3.[ ] The Debtor is a transmitting
utility.
- --------------------------------------------------------- --------------------
1. Debtor(s) (Last Name First) and 2. Secured Party(ies) Name(s) and
Address(es): Address(es)
- ------------------------------------------------------------------------------
- --------------------------------------
4.[ ] For Filing Officer: Date,
Time, No. Filing Office
- --------------------------------------
5. This Financing Statement covers 6.[ ] Assignee(s) of Secured Party
the following types (or items) and Address(es)
of property:
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:*
*(Describe Real Estate Below)
[ ] Products of the Collateral are also covered.
- ------------------------------------------------------------------------------
8. Describe Real Estate [ ] This statement is to be 9. Name of a
Here: indexed in the Real Record
Estate Records: Owner
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)
(1) Filing Officer Copy-Numerical
K-1
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Standard Form - Form UCC-1 - Approved by Secretary of State of New York
K-2
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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 State
Street Bank and Trust Company, as trustee for the holders of the Series 1996-C2
Certificates (referred to as the "Secured Party" for purposes of this financing
statement only), under that certain Pooling and Servicing Agreement dated as of
November 1, 1996 (the "Pooling and Servicing Agreement"), among the Debtor,
First Union National Bank of North Carolina, as master servicer (in such
capacity, the "Master Servicer"), CRIIMI MAE Services Limited Partnership, 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 IO, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class R-I, Class R-II and Class R-III
Series 1996-C2 (collectively, the "Series 1996-C2 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
K-3
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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;
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) and the Servicing Accounts maintained
by the Master Servicer or Special Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time on deposit in the
Reserve Account(s) or the Servicing Accounts, (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;
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
K-4
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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-C2 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 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>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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, DCR and
Standard & Poor's or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, any such item should not have an "r"
highlighter affixed to its rating by Standard & Poor's, and its
terms should have a predetermined fixed dollar amount of principal
due at maturity that cannot 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
K-6
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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, DCR and Standard & Poor's or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing by the
Rating Agencies. In addition, any such item should not have an "r"
highlighter affixed to its rating by Standard & Poor's, and its
terms should have a predetermined fixed dollar amount of principal
due at maturity that cannot 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, DCR 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),
K-7
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
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
Fitch, if rated by Fitch, DCR 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
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>
EXHIBIT L
Form of Schedule of Certificateholders
Initial
Class Certificate Balance Name of Holder Address
- ----- ------------------- -------------- -------
L-1
<PAGE>
EXHIBIT M
FORM OF
MASTER SERVICER/SPECIAL SERVICER
COLLECTION REPORT
L-1
<PAGE>
EXHIBIT "M"
MASTER SERVICER/SPECIAL SERVICER
COLLECTION REPORT
FUNB RESPONSIBILITY
Advance description code 01=Loan in grace period;
02=Delinquent less than 1 month; 03=Delinquent 1
month; 04=Delinquent 2 months; 05=Delinquent 3+ months
Aggregate principal balance Total number of
delinquent loans
Appraisal reduction amount
Current Interest Rate
Current Principal Balance
Date Paid to
Date next interest change
Date next payment change
Date of Note Maturity
Delinquency aggregate pb $ amount of all
delinquencies by count: =1 month; 2=2 months; 3=3+ months;
4=for which foreclosure proceedings have commenced
Distribution Date
Ending schedule balance
Fee rate/strip rate 1
Fee rate/strip rate 2
Fee rate/strip rate 3
Fee rate/strip rate 4
Fee rate/strip rate 5
Group ID
Liquidation/prepayment code 1=Partial liquidation;
2=Payoff prior to maturity; 3=Disposition;
4=Repurchase; 5=Full payoff at maturity; 6=DPO
Liquidation/prepayment date
Master Servicing Fee
Months to stated maturity
Neg am/deferred interest amount
Net pass through rate
Other expense advance outstanding
L-1
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Other principal adjustments
Payment status of loan A=Payment not received,
but still in grace period; B=Late payment but less
than 1 month delinquent; 0=Current; 1=One month delinquent; 2=Two
months delinquent; 3=Three or more months
delinquent; 4=Assumed scheduled
payment (performing matured balloon); 7=In foreclosure; 9=REO
Prepayment interest excess Negative value indicated shortfall
Prepayment penalty/yield mnt
Property protection advance outstanding Cumulative outstanding
advances for all Due Periods, including the current
Due Period
Prospectus loan number
Remaining amortized term
Scheduled interest amount
Scheduled principal amount
Scheduled principal and interest due
Seasoning
Servicer and Trustee fee rate
Servicer loan number
Total interest advance outstanding
Total p&i advance outstanding
Total principal advance outstanding
Transaction ID
Unscheduled principal collections
K-2
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
EXHIBIT "M"
MASTER SERVICER/SPECIAL SERVICER
COLLECTION REPORT
CRIIMI MAE RESPONSIBILITY
Appraised LTV
Balance at specially serviced transfer date
Bankruptcy date
Date asset expected to be resolved
Date of last modification
Distribution Date
Foreclosure date
Gross liquidation proceeds
Group ID
In bankruptcy
Liquidation expenses
Loan amount per SF/Unit/Bed
Modification code
Modified amortization term
Modified note rate
Modified p&i payment
Modified payment rate P&I
Modified term
Most recent ASER amount
Most recent ASER date
Most recent appraisal date
Most recent appraisal value
K-3
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Most recent fiscal YTD capital expenditures
Most recent fiscal YTD expenses
Most recent fiscal YTD leasing commissions
Most recent fiscal YTD replacement reserves
Most recent fiscal YTD reserves
Most recent fiscal YTD tenant improvements
Most recent fiscal year to date DSCR
Most recent fiscal year to date NOI
Most recent fiscal year to date debt service
Most recent fiscal year to date end date
Most recent fiscal year to date physical occ.
Most recent fiscal year to date revenue
Most recent fiscal year to date start date
Most recent master service return date
Most recent special service transfer date
Net proceeds received on liquidation
Phase 1 date
Preceding fiscal year DSCR
Preceding fiscal year NOI
Preceding fiscal year debt service amount
Preceding fiscal year financial as of date
Preceding fiscal year physical occupancy
Preceding fiscal year revenue
Preceding fiscal year expense
K-4
<PAGE>
State Street Bank and Trust Company MERRILL LYNCH MORTGAGE PASS THROUGH
CERTIFICATES
Series:
Corporate Trust Department Series 1996-C2
P.O. Box 778 Report Id:
Doc Id:
Boston, MA 02110 Payment Date:
Customer Service
(614) 664-5433 Updated Mortgage Loan
Schedule (2 of ____)
Prospectus loan number
REO date
Realized loss to trust
Second preceding fiscal year DSCR
Second preceding fiscal year NOI
Second preceding fiscal year debt service
Second preceding fiscal year expenses
Second preceding fiscal year fin. as of date
Second preceding fiscal year physical occ.
Second preceding fiscal year revenue
Site inspection date
Specially serviced status code 01=Request for
waiver of prepayment penalty; 02=Payment
default; 03=Request for Loan Modification or Workout; 04=Loan with
borrower bankruptcy; 05=Loan in
process of foreclosure; 06=Loan
now REO; 07=Loan paid off; 08=Loan returned to Master Servicer
Transaction ID
Workout Strategy Code 1=Modification;
2=Foreclosure; 3=Bankruptcy; 4=Extension; 5=Note
Sale; 6=DPO; 7=REO; 8=Resolved; 90=Pending return to Master
Servicer
Year last renovated
K-5
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of November 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 November 1, 1996 (the "Cut-off Date"), among
the Purchaser as depositor, First Union National Bank of North Carolina as
master servicer (in such capacity, the "Master Servicer"), CRIIMI MAE Services
Limited Partnership as special servicer (in such capacity, the "Special
Servicer") and State Street Bank and Trust Company 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 November 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 Mortgage 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 $557,591,016.32 (the "MLMC
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
<PAGE>
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 $1,138,310,835. The purchase and sale of the MLMC Mortgage Loans
shall take place on November 25, 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 105.0625% of the
aggregate principal balance 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 other
than the primary servicing rights. 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,
-2-
<PAGE>
express or implied) to the order of State Street Bank and
Trust Company, as trustee for the registered holders of
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-C2;
(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 State Street Bank and Trust Company, as trustee for
the registered holders of Merrill Lynch Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1996-C2;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of State Street Bank and Trust
Company, as trustee for the registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-C2, 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
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applicable public office for UCC Financing Statements, an
original UCC-2 or UCC-3, as appropriate, in favor of State
Street Bank and Trust Company, as trustee for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2.
(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 or at the direction
of the Master Servicer, to the appropriate sub-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 corporation validly existing and in good
standing under the laws of the State of Delaware 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
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creditors' rights in general 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 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
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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 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 November __,
1996 (the "Underwriting Agreement") and the Certificate Purchase
Agreement, dated as of November __, 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
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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 Mortgage 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,
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 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; 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
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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 and 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 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 non-lien 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. A UCC financing statement has
been filed and/or recorded in all places necessary to perfect a valid
security interest in the personal property, granted under such mortgage
for which perfection is accomplished by the filing of a UCC financing
statement; any security agreement, chattel mortgage or
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equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid and enforceable first lien
and first priority security interest on the property described therein,
provided that enforceability may be limited by bankruptcy or other laws
affecting creditor's rights or by the application of the rules of equity.
(xviii) The related Mortgage Note and Mortgage do not require
the Mortgagee thereof to release any portion of the related Mortgaged
Property from the lien of the Mortgage that would have a material and
adverse affect on the related Mortgage Loan except upon payment in full of
the Mortgage Loan.
(xix) As of 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 as of the date
hereof 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 were thirty (30) or more 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.
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(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 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.
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(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 Site Assessment was performed
with respect to the related Mortgaged Property. Such Phase I Environmental
Site Assessment was performed within eight (8) months (or 15 months with
respect to two (2) 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 an amount of money considered
sufficient by the Seller, based upon the related environmental reports, to
cure and remedy such condition or circumstance as recommended in the Phase
I or, where applicable, 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 or those which are initially placed
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on, in or under the Mortgaged Property after foreclosure or other taking
of title to the Mortgaged Property by the holder of the Mortgage. To the
best of the Seller's knowledge, having made no independent inquiry other
than reviewing Phase I and Phase II (where applicable) Environmental Site
Assessments, (i) the Mortgaged Property is in material compliance with all
applicable federal, state and local laws pertaining to environmental
regulation, contamination or clean-up, and (ii) no notice of violation of
such laws has 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). To the extent any material
violation was disclosed, there has been escrowed an amount of money
considered sufficient by the Seller, based upon the related environmental
reports, to cure and remedy such condition or circumstance as recommended
in the Phase I or Phase II Environmental Site Assessment.
(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
such lien may be 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. A list of Mortgaged Properties subject to secondary
liens is attached hereto as Exhibit C.
(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
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giving of notice, or both, would result in a material default under the
terms of such lease.
(xxxviii) 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.
(xxxix) 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 or, if consent of the
lessor thereunder is required, it has been obtained prior to the Closing
Date;
(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 set forth in the Ground Lease, 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
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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) 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 and any exceptions stated in the related title insurance
policy or opinion of title, which exceptions 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, (2) the use of such Mortgaged Property for the use
currently being made thereof, or (3) the value of the Mortgaged Property.
(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 curable
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.
(L) Upon request, the Ground Lessor is required to enter into
a new lease upon termination of the Ground Lease for any reason, including
the rejection of the lease in bankruptcy.
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(xl) As of the Cut-off Date, the aggregate principal amount of
any Mortgage Loan or group of Mortgage Loans made to one borrower or group
of affiliated borrowers does not exceed $44,000,000. A list of borrowers
or groups of affiliated borrowers with multiple Mortgage Loans is attached
hereto as Exhibit D.
(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 as described in Section
3(b)(xxvi) 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 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
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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 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:
-16-
<PAGE>
(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 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
-17-
<PAGE>
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 relating to the MLMC Mortgage Loans or omitted or omits to
state therein a material fact necessary in order to make the statements therein
relating to the MLMC Mortgage Loans, 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 relating to the MLMC Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the statements
therein relating to the MLMC Mortgage Loans, 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 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
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
-18-
<PAGE>
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, in each case solely 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.
(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
-19-
<PAGE>
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 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.
-20-
<PAGE>
(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 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
-21-
<PAGE>
expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expense.
-22-
<PAGE>
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,
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
-23-
<PAGE>
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 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.
-24-
<PAGE>
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.
-25-
<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) 449-3897
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
-26-
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
-27-
<PAGE>
ML LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
201 JMA - Ashford On 2700 S. Dairy Ashford Houston TX 77082 3,450,000 3,444,409.56
The Green Apts.
202 Belmont Square 2020 Jerry Murphy Road Pueblo CO 81001 3,320,300 3,313,276.46
Apts.
203 JMA - Brookmore 810 Brooks Avenue Rosenburg TX 77471 1,811,661 1,808,761.78
Hollow Apartments
205 Capital Tech 1611 N. Stemmons Freeway Carrollton TX 75006 1,253,800 1,247,389.50
Center
206 Clinton 7100-7251 Clinton Drive Houston TX 77020 1,762,500 1,753,030.20
Industrial Park
207 26 Court Street 26 Court Street Brooklyn NY 11242 9,500,000 9,409,634.76
209 Crosby Creek 1300 E. Crosby Road Carrollton TX 75006 2,400,000 2,388,936.09
210 INT-Deer Creek 16303 Imperial Valley Houston TX 77060 3,326,100 3,315,902.31
Apartments Drive
211 First Line 1120 Red Bluff Road Pasadena TX 77506 1,350,000 1,343,857.96
Apartments
212 Fountainview 6015 Winsome & 6100 Houston TX 77057 1,971,700 1,963,141.63
Lodge I & II Apts. Fairdale
213 Friendship Square 1115 - 1195 Bridge Brighton CO 80601 1,175,000 1,167,533.30
Street
214 Fountain Square 544 Camp Avenue Gulfport MS 39501 1,800,000 1,791,971.16
Apartments
215 INT-6200 Gessner 8721 Town Park Drive Houston TX 77036 10,000,000 9,969,340.40
Apartments
217 Lakewood Village 200 E. Lakewood Drive Nacogdoches TX 75961 1,120,000 1,114,870.71
Apartments
218 INT-The Lodge 7600 Kirby Houston TX 77030 4,553,500 4,539,539.15
Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
201 JMA - Ashford On 27,983.19 9.0900 117 357 8/1/06 No 250 per unit 8.9500
The Green Apts.
202 Belmont Square 27,219.10 9.2100 116 356 7/1/06 No 250 per unit 9.0900
Apts.
203 JMA - Brookmore 14,772.99 9.1500 117 357 8/1/06 No 250 per unit 9.0100
Hollow Apartments
205 Capital Tech 10,858.69 9.3900 54 294 5/1/01 No 0.15 per sq. ft. 9.2700
Center
206 Clinton 14,899.61 9.0900 114 294 5/1/06 No 0.15 per sq. ft. 8.9700
Industrial Park
207 26 Court Street 91,362.57 9.9500 233 233 4/1/16 No 0.21 per sq. ft. 9.8100
209 Crosby Creek 19,960.24 8.8900 115 295 6/1/06 No 250 per unit 8.7700
210 INT-Deer Creek 25,598.41 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
211 First Line 11,301.43 8.9700 115 295 6/1/06 No 250 per unit 8.8500
Apartments
212 Fountainview 15,146.70 8.4900 113 353 4/1/06 No 250 per unit 8.3500
Lodge I & II Apts.
213 Friendship Square 9,884.71 9.0300 113 293 4/1/06 No 0.16 per sq. ft. 8.8900
214 Fountain Square 15,216.62 9.0900 175 295 6/1/11 No 250 per unit 8.9700
Apartments
215 INT-6200 Gessner 76,962.23 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
217 Lakewood Village 9,345.37 8.9300 79 295 6/1/03 No 250 per unit 8.8100
Apartments
218 INT-The Lodge 35,044.75 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
201 JMA - Ashford On 0.0600 0.0750 LJ Melody
The Green Apts.
202 Belmont Square 0.0400 0.0750 First Union
Apts.
203 JMA - Brookmore 0.0600 0.0750 LJ Melody
Hollow Apartments
205 Capital Tech 0.0400 0.0750 First Union
Center
206 Clinton 0.0400 0.0750 First Union
Industrial Park
207 26 Court Street 0.0600 0.0750 Key Corp
209 Crosby Creek 0.0400 0.0750 First Union
210 INT-Deer Creek 0.0400 0.0750 First Union
Apartments
211 First Line 0.0400 0.0750 First Union
Apartments
212 Fountainview 0.0600 0.0750 LJ Melody
Lodge I & II Apts.
213 Friendship Square 0.0600 0.0750 LJ Melody
214 Fountain Square 0.0400 0.0750 First Union
Apartments
215 INT-6200 Gessner 0.0400 0.0750 First Union
Apartments
217 Lakewood Village 0.0400 0.0750 First Union
Apartments
218 INT-The Lodge 0.0400 0.0750 First Union
Apartments
-42-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
219 Mount View 20-90 Mount View Lane Colorado CO 80907 1,771,400 1,761,866.69
Business Park Springs
221 Pecos Trail 1660 Old Pecos Trail Santa Fe NM 87501 1,468,300 1,463,764.55
Office Compound
223 Ralston Plaza Ward Rd. & 64th Ave. Arvada CO 80002 2,461,100 2,449,308.85
224 INT-Regency Walk 10301 Sandpiper Houston TX 77096 4,360,000 4,346,632.41
Apartments
225 Southgate 801A Southgate Drive State College PA 16801 3,300,000 3,294,596.76
Apartments &
Townhouses
228 Shafer Plaza 8383 Westheimer Houston TX 77063 6,500,000 6,482,638.88
Shopping Center
229 Shiloh Road 1717 Shiloh Road Tyler TX 75703 3,320,000 3,310,525.88
Apartments
230 Silvercreek II 4619 W. 34th Street Houston TX 77092 1,500,000 1,488,771.26
Apartments
235 BCM-Westheimer 5820 Berkman Drive Austin TX 78723 720,000 718,140.97
Court Apts.
237 Westheimer House 5800 Wellington Drive Austin TX 78723 1,200,000 1,196,901.62
238 Woodwillow 3601 Willow Springs Road Austin TX 78704 1,431,000 1,427,922.18
Townhomes
239 Timbergrove Manor 1600 West T. C. Jester Houston TX 77008 1,405,000 1,402,713.83
Apts. Blvd
242 JMA - Woodcreek 3023 Woodcreek Lane Houston TX 77345 820,000 818,671.26
Village Apartments
244 SHL - San Antonio 7458 Louis Pasteur San Antonio TX 78229 3,030,000 3,024,633.39
Station Apts.
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
219 Mount View 14,962.69 9.0800 78 294 5/1/03 No 0.16 per sq. ft. 8.9600
Business Park
221 Pecos Trail 13,270.07 9.9300 116 296 7/1/06 No 0.15 per sq. ft. 9.8100
Office Compound
223 Ralston Plaza 21,983.50 9.7800 114 294 5/1/06 No 0.16 per sq. ft. 9.6600
224 INT-Regency Walk 33,555.53 8.5100 55 355 6/1/01 No 225 per unit 8.3900
Apartments
225 Southgate 26,647.58 9.0400 117 357 8/1/06 No 275 per unit 8.9200
Apartments &
Townhouses
228 Shafer Plaza 53,144.50 9.1800 115 355 6/1/06 No 0.15 per sq. ft. 9.0400
Shopping Center
229 Shiloh Road 26,379.72 8.8600 55 355 6/1/01 No 225 per unit 8.7400
Apartments
230 Silvercreek II 13,611.87 9.1200 235 235 6/1/16 No 250 per unit 9.0000
Apartments
235 BCM-Westheimer 6,170.92 9.2600 117 297 8/1/06 No 290 per unit 9.1400
Court Apts.
237 Westheimer House 10,284.86 9.2600 117 297 8/1/06 No 296 per unit 9.1400
238 Woodwillow 11,648.26 9.1300 80 356 7/1/03 No 250 per unit 9.0100
Townhomes
239 Timbergrove Manor 11,375.79 9.0700 117 357 8/1/06 No 250 per unit 8.9500
Apts.
242 JMA - Woodcreek 6,651.08 9.0900 117 357 8/1/06 No 250 per unit 8.9500
Village Apartments
244 SHL - San Antonio 23,642.52 8.6600 45 357 8/1/00 No 250 per unit 8.5400
Station Apts.
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
219 Mount View 0.0400 0.0750 First Union
Business Park
221 Pecos Trail 0.0400 0.0750 First Union
Office Compound
223 Ralston Plaza 0.0400 0.0750 First Union
224 INT-Regency Walk 0.0400 0.0750 First Union
Apartments
225 Southgate 0.0400 0.0750 First Union
Apartments &
Townhouses
228 Shafer Plaza 0.0600 0.0750 LJ Melody
Shopping Center
229 Shiloh Road 0.0400 0.0750 First Union
Apartments
230 Silvercreek II 0.0400 0.0750 First Union
Apartments
235 BCM-Westheimer 0.0400 0.0750 First Union
Court Apts.
237 Westheimer House 0.0400 0.0750 First Union
238 Woodwillow 0.0400 0.0750 First Union
Townhomes
239 Timbergrove Manor 0.0400 0.0750 First Union
Apts.
242 JMA - Woodcreek 0.0600 0.0750 LJ Melody
Village Apartments
244 SHL - San Antonio 0.0400 0.0750 First Union
Station Apts.
-43-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
245 SHL - Village 2305 Bay Area Bldv. Houston TX 77058 4,900,000 4,891,321.32
Green Apartments
247 Buckingham Manor 1110 & 1160 S. Joliet Aurora CO 80012 1,454,300 1,449,069.93
248 Westec Plaza 625 Digital Drive Plano TX 75075 896,000 893,751.32
249 Marigold I 2303 Goliad Road San Antonio TX 78223 2,095,200 2,087,751.86
Apartments
250 Belfonti-Stonebridge 157-161 Pinney Street Ellington CT 06029 1,450,000 1,444,802.61
Apartments
251 Glenbrook 600 West Pioneer Parkway Arlington TX 76010 2,500,000 2,493,359.85
Townhomes
252 Belfonti-Greenbriar 110 Falls Terrace Watertown CT 06779 4,350,000 4,334,407.84
Hills Apartments
253 Wilshire Villa 4245 5th Avenue South Lake Charles LA 70605 2,400,000 2,397,569.11
Apartments
254 Colinas Business 4320 North Belt Line Irving TX 75038 1,670,000 1,667,263.19
Park Road
255 Grayridge 5625 Bissonnet Street Houston TX 77081 1,225,000 1,222,721.30
Apartments
256 Bay Towers 1203 Market Street Pascagoula MS 39567 1,550,000 1,543,761.39
258 Berkeley Heights 396 Springfield Avenue Berkeley NJ 07922 2,500,000 2,492,720.38
Grand Union Heights
261 Coca-Cola 2540 W. Pennway Kansas City MO 64108 1,950,000 1,946,542.95
Building-Industrial
260 Homestead Lodge 13300 York Center Drive Charlotte NC 28273 2,100,000 2,094,256.70
269 Cordele Corners 1411 East 16th Avenue Cordele GA 31015 2,175,000 2,171,066.42
Shopping Center
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
245 SHL - Village 38,233.78 8.6600 45 357 8/1/00 No 225 per unit 8.5400
Green Apartments
247 Buckingham Manor 12,224.36 9.0200 56 296 7/1/01 No 250 per unit 8.9000
248 Westec Plaza 7,784.77 9.4300 57 297 8/1/01 No 0.15 per sq. ft. 9.3100
249 Marigold I 17,712.15 9.0900 80 296 7/1/03 No 250 per unit 8.9700
Apartments
250 Belfonti-Stonebridge 12,208.09 9.0400 116 296 7/1/06 No 250 per unit 8.9200
Apartments
251 Glenbrook 21,134.20 9.0900 117 297 8/1/06 No 280 per unit 8.9700
Townhomes
252 Belfonti-Greenbriar 36,624.27 9.0400 116 296 7/1/06 No 250 per unit 8.9200
Hills Apartments
253 Wilshire Villa 19,970.71 9.3800 118 358 9/1/06 No 250 per unit 9.2600
Apartments
254 Colinas Business 14,625.58 9.5300 58 298 9/1/01 No 0.15 per sq. ft. 9.4100
Park
255 Grayridge 10,087.91 8.7700 118 298 9/1/06 No 225 per unit 8.6300
Apartments
256 Bay Towers 14,875.77 9.9200 237 237 8/1/16 No 250 per unit 9.8000
258 Berkeley Heights 22,896.67 9.2500 118 238 9/1/06 Yes 0.22 per sq. ft. 9.1300
Grand Union
261 Coca-Cola 16,444.52 9.0600 118 298 9/1/06 No 0.15 per sq. ft. 8.9400
Building-Industrial
260 Homestead Lodge 19,905.04 9.7400 238 238 9/1/16 No 4% of gross rev. 9.6200
269 Cordele Corners 18,163.24 8.9400 178 298 9/1/11 No 0.24 per sq. ft. 8.8200
Shopping Center
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
245 SHL - Village 0.0400 0.0750 First Union
Green Apartments
247 Buckingham Manor 0.0400 0.0750 First Union
248 Westec Plaza 0.0400 0.0750 First Union
249 Marigold I 0.0400 0.0750 First Union
Apartments
250 Belfonti-Stonebridge 0.0400 0.0750 First Union
Apartments
251 Glenbrook 0.0400 0.0750 First Union
Townhomes
252 Belfonti-Greenbriar 0.0400 0.0750 First Union
Hills Apartments
253 Wilshire Villa 0.0400 0.0750 First Union
Apartments
254 Colinas Business 0.0400 0.0750 First Union
Park
255 Grayridge 0.0600 0.0750 LJ Melody
Apartments
256 Bay Towers 0.0400 0.0750 First Union
258 Berkeley Heights 0.0400 0.0750 First Union
Grand Union
261 Coca-Cola 0.0400 0.0750 First Union
Building-Industrial
260 Homestead Lodge 0.0400 0.0750 First Union
269 Cordele Corners 0.0400 0.0750 First Union
Shopping Center
-44-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
259 College Park S.R. 696 (North Earl Shippensburg PA 17257 2,100,000 2,096,270.83
Apartments Street)
284 Rodeo Square 6700 Dairy Ashford Houston TX 77072 6,960,000 6,951,379.74
Apartments
282 Super 8 Motel 3617 N. Pan Am San Antonio TX 78219 1,650,000 1,645,658.69
Expressway (aka I-35)
265 Oxford-Runaway 8242 Runaway Bay Drive Charlotte NC 28212 9,259,000 9,247,508.82
Bay Apartments
263 Oxford-Runaway 1480 Runaway Bay Drive Columbus OH 43204 4,522,000 4,516,387.83
Bay II Apartments
264 Oxford - Hunters 2550 Steeple Chase Drive Miamisburg OH 45342 9,081,000 9,069,729.74
Chase Apartments
266 Oxford - Island 2225 Montego Blvd Columbus OH 43235 10,120,000 10,107,440.25
Club Apartments
267 Oxford-Oaks at 3800 Woodbridge Blvd Fairfield OH 45014 11,070,000 11,056,261.22
Woodbridge I Apts
281 Cedar Grove 1A Whippoorwill Way Mantua NJ 08051 2,430,000 2,425,619.80
Mobile Home Park
279 American Trade 6627 Maple Avenue Dallas TX 75226 1,425,000 1,421,440.19
Institute
285 Copper Tree 350 Ramapo Valley Road Oakland NJ 07436 9,000,000 8,990,151.56
Shopping Plaza
286 Las Colinas Tech 2039 Walnut Hill Lane Irving TX 75038 1,400,000 1,397,777.97
Center
274 KFS-Sunset Pointe 465 West Clemmens Lane Fallbrook CA 92028 3,000,000 2,996,374.72
Apartments
222 Pinecrest 2035 E. Pinetree Thomasville GA 31792 1,085,000 1,080,421.65
Apartments Boulevard
277 KFS-Sycamore 820 Sycamore Avenue Vista CA 92083 11,468,600 11,454,741.05
Ridge Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
259 College Park 17,695.08 9.0500 118 298 9/1/06 No 325 per unit 8.9300
Apartments
284 Rodeo Square 53,073.08 8.4100 34 358 9/1/99 No 250 per unit 8.2900
Apartments
282 Super 8 Motel 15,966.61 10.0400 238 238 9/1/16 No 4% of gross rev. 9.9200
265 Oxford-Runaway 70,538.55 8.4000 118 358 9/1/06 No 254 per unit 8.2800
Bay Apartments
263 Oxford-Runaway 34,450.30 8.4000 118 358 9/1/06 No 284 per unit 8.2800
Bay II Apartments
264 Oxford - Hunters 69,182.48 8.4000 118 358 9/1/06 No 250 per unit 8.2800
Chase Apartments
266 Oxford - Island 77,097.97 8.4000 118 358 9/1/06 No 250 per unit 8.2800
Club Apartments
267 Oxford-Oaks at 84,335.43 8.4000 118 358 9/1/06 No 250 per unit 8.2800
Woodbridge I Apts
281 Cedar Grove 20,325.95 8.9600 178 298 9/1/11 No 50 per pad 8.8400
Mobile Home Park
279 American Trade 14,983.56 9.6200 179 179 10/1/11 No 0.15 per sq. ft. 9.5000
Institute
285 Copper Tree 72,480.80 9.0100 118 358 9/1/06 No 0.15 per sq. ft. 8.8900
Shopping Plaza
286 Las Colinas Tech 12,446.53 9.7200 238 298 9/1/16 No 0.04 per sq. ft. 9.6000
Center
274 KFS-Sunset Pointe 23,131.22 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Apartments
222 Pinecrest 9,549.15 9.3100 272 272 7/1/19 No 268 per unit 9.1900
Apartments
277 KFS-Sycamore 88,427.56 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Ridge Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
259 College Park 0.0400 0.0750 First Union
Apartments
284 Rodeo Square 0.0400 0.0750 First Union
Apartments
282 Super 8 Motel 0.0400 0.0750 First Union
265 Oxford-Runaway 0.0400 0.0750 First Union
Bay Apartments
263 Oxford-Runaway 0.0400 0.0750 First Union
Bay II Apartments
264 Oxford - Hunters 0.0400 0.0750 First Union
Chase Apartments
266 Oxford - Island 0.0400 0.0750 First Union
Club Apartments
267 Oxford-Oaks at 0.0400 0.0750 First Union
Woodbridge I Apts
281 Cedar Grove 0.0400 0.0750 First Union
Mobile Home Park
279 American Trade 0.0400 0.0750 First Union
Institute
285 Copper Tree 0.0400 0.0750 First Union
Shopping Plaza
286 Las Colinas Tech 0.0400 0.0750 First Union
Center
274 KFS-Sunset Pointe 0.0600 0.0750 LJ Melody
Apartments
222 Pinecrest 0.0400 0.0750 First Union
Apartments
277 KFS-Sycamore 0.0600 0.0750 LJ Melody
Ridge Apartments
-45-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
273 KFS-Sunset 1456 Alturas Street Fallbrook CA 92028 2,442,400 2,439,448.54
Terrace Apartments
276 KFS-Sunset 3634 College Boulevard Oceanside CA 92056 5,650,000 5,643,172.40
Village Apartments
232 EW - Sorrento 10350-60 Sorrento San Diego CA 92121 2,450,000 2,445,213.34
Creek Industrial Valley Road
Park
233 EW - Sorrento 10635-37-39 Roselle San Diego CA 92121 1,600,000 1,596,807.73
Roselle Street
Industrial Park
231 Solarium 9275 LBJ Freeway Dallas TX 75243 1,500,000 1,480,738.65
Apartments
272 KFS-Sunset Trails 959 Postal Way Vista CA 92083 1,700,000 1,698,147.46
Apartments
278 KFS-Sunset 910-975 Del Dios Highway Escondido CA 92083 14,039,000 14,022,034.92
Apartments
208 Courtyard 15025 Saticoy Street Van Nuys CA 91405 1,050,000 1,047,918.21
Apartments
332 Summer Street 1111 & 1177 Summer Stamford CT 06905 7,620,000 7,613,822.65
Office Building Street
335 Cooper Park 812 Cooper Square Circle Arlington TX 76013 2,920,000 2,918,470.27
Apartments
356 Prospect Plaza 401 Jefferson Street Frederick MD 21701 4,155,000 4,151,721.53
339 Twin Parks Estates 800 West Harris Road Arlington TX 76017 2,320,000 2,318,071.10
262 22601 Pacific 22601 Pacific Coast Malibu CA 90265 2,450,000 2,439,960.03
Coast Highway Ctr Highway
227 Seneca Village 3201 East Seneca St. Tucson AZ 85716 3,000,000 2,995,138.75
Apartments
257 Pioneer Point 216 W. Pioneer Parkway Arlington TX 76010 1,200,000 1,195,825.18
Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
273 KFS-Sunset 18,831.90 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Terrace Apartments
276 KFS-Sunset 43,563.79 8.5300 82 358 9/1/03 No 220 per unit 8.3900
Village Apartments
232 EW - Sorrento 20,762.00 9.5900 116 356 7/1/06 No 0.15 per sq. ft. 9.4500
Creek Industrial
Park
233 EW - Sorrento 13,442.00 9.4900 116 356 7/1/06 No 0.15 per sq. ft. 9.3500
Roselle
Industrial Park
231 Solarium 15,654.32 9.4900 175 175 6/1/11 No 250 per unit 9.3700
Apartments
272 KFS-Sunset Trails 13,715.30 9.0300 118 358 9/1/06 No 200 per unit 8.8900
Apartments
278 KFS-Sunset 108,246.39 8.5300 82 358 9/1/03 No 200 per unit 8.3900
Apartments
208 Courtyard 8,844.30 9.5200 116 356 7/1/06 No 225 per unit 9.3800
Apartments
332 Summer Street 66,946.85 9.5700 119 299 10/1/06 No 0.15 per sq. ft. 9.4500
Office Building
335 Cooper Park 23,916.40 9.2000 239 359 10/1/16 No 269 per unit 9.0800
Apartments
356 Prospect Plaza 36,968.60 9.7300 83 299 10/1/03 No 0.15 per sq. ft. 9.6100
339 Twin Parks Estates 20,140.90 9.4200 119 299 10/1/06 No 50 per pad 9.3000
262 22601 Pacific 21,576.12 9.6000 79 295 6/1/03 No 0.15 per sq. ft. 9.4800
Coast Highway Ctr
227 Seneca Village 24,333.20 9.0900 117 357 8/1/06 No 250 per unit 8.9500
Apartments
257 Pioneer Point 10,251.75 9.2200 116 296 7/1/06 No 265 per unit 9.1000
Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
273 KFS-Sunset 0.0600 0.0750 LJ Melody
Terrace Apartments
276 KFS-Sunset 0.0600 0.0750 LJ Melody
Village Apartments
232 EW - Sorrento 0.0600 0.0750 LJ Melody
Creek Industrial
Park
233 EW - Sorrento 0.0600 0.0750 LJ Melody
Roselle
Industrial Park
231 Solarium 0.0400 0.0750 First Union
Apartments
272 KFS-Sunset Trails 0.0600 0.0750 LJ Melody
Apartments
278 KFS-Sunset 0.0600 0.0750 LJ Melody
Apartments
208 Courtyard 0.0600 0.0750 LJ Melody
Apartments
332 Summer Street 0.0400 0.0750 First Union
Office Building
335 Cooper Park 0.0400 0.0750 First Union
Apartments
356 Prospect Plaza 0.0400 0.0750 First Union
339 Twin Parks Estates 0.0400 0.0750 First Union
262 22601 Pacific 0.0400 0.0750 First Union
Coast Highway Ctr
227 Seneca Village 0.0600 0.0750 LJ Melody
Apartments
257 Pioneer Point 0.0400 0.0750 First Union
Apartments
-46-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
241 Renaissance III NWC of Pecos & Flamingo Las Vegas NV 89104 17,280,000 17,246,477.80
Shopping Center
226 Scripps Mesa 9961 Erma Road San Diego CA 92131 2,573,700 2,565,937.07
Apartments
319 Enfield Court 16541 Loch Katrine Road Houston TX 77084 1,350,000 1,349,215.22
Apartments
271 Gateway Retail 2500 Gateway Boulevard Federal Way WA 98003 12,750,000 12,725,848.52
Center South
200 AB - Sixty-Five 65 Madison Avenue Morristown NJ 07960 3,691,000 3,672,470.28
Madison Avenue
234 1212 Westheimer 1212 Westheimer Austin TX 78752 2,990,000 2,982,058.38
Apartments
236 AB - Westgate @ 9 Law Drive Fairfield NJ 07004 4,163,000 4,142,239.42
Fairfield
275 KFS-Citrus Sunset 1280 North Citrus Avenue Vista CA 92083 3,660,000 3,655,577.16
Apartments
304 The Olympic NWC Olympic and Santa Monica CA 90404 10,000,000 9,991,838.37
Marketplace Cloverfield
270 Vista Gardens 555 East Fruitvale Hemet CA 92543 2,150,000 2,147,676.51
Apartments
283 Pioneer Way 1035 Pioneer Way El Cajon CA 92020 2,900,000 2,894,789.93
Industrial Park
302 SNE Enterprises 1000 Southview Drive Mosinee WI 54455 9,975,000 9,966,776.06
240 West Palm 501-635 West Palm Avenue Orange CA 92666 3,735,000 3,721,788.44
Industrial Park
246 K&S - Pioneer 2901 West 63rd Avenue Denver CO 80221 1,870,000 1,866,925.42
Village MHP
243 K&S - North 9700 North Riverdale Thornton CO 80229 8,430,000 8,415,069.13
County Village
204 Canyon Center 19307 Soledad Canyon Rd. Santa Clarita CA 91351 13,300,000 13,246,070.99
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
241 Renaissance III 143,137.11 9.1700 117 333 8/1/06 No 0.15 per sq. ft. 9.0300
Shopping Center
226 Scripps Mesa 19,953.92 8.5900 55 355 6/1/01 No 276 per unit 8.4500
Apartments
319 Enfield Court 10,572.28 8.7000 83 359 10/1/03 No 290 per unit 8.5800
Apartments
271 Gateway Retail 104,044.82 8.6600 34 298 9/1/99 No 0.15 per sq. ft. 8.5400
Center
200 AB - Sixty-Five 32,248.14 9.5000 114 294 5/1/06 Yes 0.26 per sq. ft. 9.3600
Madison Avenue
234 1212 Westheimer 25,276.50 9.0900 117 297 8/1/06 No 309 per unit 8.9700
Apartments
236 AB - Westgate @ 36,487.81 9.5400 114 294 5/1/06 No 0.15 per sq. ft. 9.4000
Fairfield
275 KFS-Citrus Sunset 28,220.09 8.5300 82 358 9/1/03 No 225 per unit 8.3900
Apartments
304 The Olympic 87,578.30 9.5300 239 299 10/1/16 No 0.15 per sq. ft. 9.3900
Marketplace
270 Vista Gardens 17,407.79 9.0700 82 358 9/1/03 No 175 per unit 8.9300
Apartments
283 Pioneer Way 24,296.99 8.9800 118 298 9/1/06 No 0.15 per sq. ft. 8.8400
Industrial Park
302 SNE Enterprises 86,943.31 9.4700 119 299 10/1/06 No 0.15 per sq. ft. 9.3500
240 West Palm 31,651.47 9.1200 116 296 7/1/06 No 0.15 per sq. ft. 8.9800
Industrial Park
246 K&S - Pioneer 15,073.36 9.0200 81 357 8/1/03 No 79 per pad 8.8800
Village MHP
243 K&S - North 65,777.71 8.6600 57 357 8/1/01 No 50 per pad 8.5200
County Village
204 Canyon Center 111,039.16 9.0600 175 307 6/1/11 No 0.15 per sq. ft. 8.9200
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
241 Renaissance III 0.0600 0.0750 LJ Melody
Shopping Center
226 Scripps Mesa 0.0600 0.0750 LJ Melody
Apartments
319 Enfield Court 0.0400 0.0750 First Union
Apartments
271 Gateway Retail 0.0400 0.0750 First Union
Center
200 AB - Sixty-Five 0.0600 0.0750 Key Corp
Madison Avenue
234 1212 Westheimer 0.0400 0.0750 First Union
Apartments
236 AB - Westgate @ 0.0600 0.0750 Key Corp
Fairfield
275 KFS-Citrus Sunset 0.0600 0.0750 LJ Melody
Apartments
304 The Olympic 0.0600 0.0750 LJ Melody
Marketplace
270 Vista Gardens 0.0600 0.0750 LJ Melody
Apartments
283 Pioneer Way 0.0600 0.0750 LJ Melody
Industrial Park
302 SNE Enterprises 0.0400 0.0750 First Union
240 West Palm 0.0600 0.0750 LJ Melody
Industrial Park
246 K&S - Pioneer 0.0600 0.0750 LJ Melody
Village MHP
243 K&S - North 0.0600 0.0750 LJ Melody
County Village
204 Canyon Center 0.0600 0.0750 LJ Melody
-47-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
268 Paseo Plaza 2600 West Sahara Avenue Las Vegas NV 89102 5,333,400 5,311,064.50
220 P & K-Olive 6500 - 6502 W. Olive Glendale AZ 85302 1,850,000 1,843,706.44
Gardens Apartments Avenue
216 P&K-Glendale 5902 W. Royal Palm Rd Glendale AZ 85302 1,800,000 1,793,876.54
Shadows
280 Tiger Industrial 4901 & 4929 West Van Phoenix AZ 85043 1,800,000 1,796,755.35
Plaza Buren Street
307 Shilo 11707 N.E. Airport Way Portland OR 97220-1075 14,750,000 14,729,334.62
Inn-Portland
Airport/I-205
299 Shilo Inn-Salem 3304 Market Street NE Salem OR 97301 5,470,000 5,462,336.30
Suites
303 Shilo Inn-Seaside 30 North Promenade Seaside OR 97138 9,510,000 9,496,676.08
Oceanfront Resort
300 Shilo Inn-Tacoma 7414 South Hosmer Street Tacoma WA 98408 6,770,000 6,760,514.94
306 Collegetown Plaza 111-121 Dryden Road Ithaca NY 14850 7,000,000 6,996,152.45
326 The Branson Mall 2206 West State Hwy. 76 Branson MO 65616 3,300,000 3,300,000.00
325 CAP-Clubhouse 3 Clubhouse Circle Storrs CT 06268 1,571,500 1,570,031.59
Apartments
324 CAP-Knollwood Knollwood Acres Road Storrs CT 06268 3,828,000 3,824,422.80
Apartments
323 CAP-Maplewood 1 Carlton Road Storrs CT 06268 1,272,200 1,271,010.83
Apartments
322 CAP-Millbrook 170 Spring Hill Road Storrs CT 06268 436,000 435,592.13
Apartments
321 CAP-Oakwood 114 South Eagleville Storrs CT 06268 257,300 257,059.12
Apartments Road
293 JF Commons West 107 The Commons Ithaca NY 14850 2,200,000 2,198,139.89
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
268 Paseo Plaza 46,486.56 9.4700 115 295 6/1/06 No 0.15 per sq. ft. 9.3300
220 P & K-Olive 14,765.87 8.9100 114 354 5/1/06 No 327 per unit 8.7900
Gardens Apartments
216 P&K-Glendale 14,366.80 8.9100 114 354 5/1/06 No 283 per unit 8.7900
Shadows
280 Tiger Industrial 15,056.26 8.9600 118 298 9/1/06 No 0.15 per sq. ft. 8.8400
Plaza
307 Shilo 137,682.05 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
Inn-Portland
Airport/I-205
299 Shilo Inn-Salem 51,059.04 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
Suites
303 Shilo Inn-Seaside 88,769.92 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
Oceanfront Resort
300 Shilo Inn-Tacoma 63,193.73 9.5200 239 239 10/1/16 No 4% of gross rev. 9.3800
306 Collegetown Plaza 56,172.55 8.9700 119 359 10/1/06 No 350 per unit 8.8500
326 The Branson Mall 28,010.54 9.1400 120 300 11/1/06 No 0.15 per sq. ft. 9.0200
325 CAP-Clubhouse 12,887.97 8.7200 83 299 10/1/03 No 270 per unit 8.6000
Apartments
324 CAP-Knollwood 31,393.67 8.7200 83 299 10/1/03 No 280 per unit 8.6000
Apartments
323 CAP-Maplewood 10,433.39 8.7200 83 299 10/1/03 No 270 per unit 8.6000
Apartments
322 CAP-Millbrook 3,575.66 8.7200 83 299 10/1/03 No 270 per unit 8.6000
Apartments
321 CAP-Oakwood 2,110.13 8.7200 83 299 10/1/03 No 271 per unit 8.6000
Apartments
293 JF Commons West 18,946.78 9.3200 119 299 10/1/06 No 300 per unit 9.2000
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
268 Paseo Plaza 0.0600 0.0750 LJ Melody
220 P & K-Olive 0.0400 0.0750 First Union
Gardens Apartments
216 P&K-Glendale 0.0400 0.0750 First Union
Shadows
280 Tiger Industrial 0.0400 0.0750 First Union
Plaza
307 Shilo 0.0600 0.0750 Key Corp
Inn-Portland
Airport/I-205
299 Shilo Inn-Salem 0.0600 0.0750 Key Corp
Suites
303 Shilo Inn-Seaside 0.0600 0.0750 Key Corp
Oceanfront Resort
300 Shilo Inn-Tacoma 0.0600 0.0750 Key Corp
306 Collegetown Plaza 0.0400 0.0750 First Union
326 The Branson Mall 0.0400 0.0750 First Union
325 CAP-Clubhouse 0.0400 0.0750 First Union
Apartments
324 CAP-Knollwood 0.0400 0.0750 First Union
Apartments
323 CAP-Maplewood 0.0400 0.0750 First Union
Apartments
322 CAP-Millbrook 0.0400 0.0750 First Union
Apartments
321 CAP-Oakwood 0.0400 0.0750 First Union
Apartments
293 JF Commons West 0.0400 0.0750 First Union
-48-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
350 Horwitz-Ramada 13455 SW Canyon Road Beaverton OR 97005 4,900,000 4,900,000.00
Inn - Beaverton
351 Horwitz-Ramada 1550 NW 9th Street Corvallis OR 97330 5,750,000 5,750,000.00
Inn - Corvallis
352 Horwitz-Ramada 6221 NE 82nd Street Portland OR 97220 7,800,000 7,800,000.00
Inn - Portland
353 Ramada Inn - 2200 Fifth Avenue Seattle WA 98121 7,850,000 7,850,000.00
Seattle
331 Holiday Inn 4100 Salida Blvd Modesto CA 95358 2,600,000 2,600,000.00
Express
316 Howard Johnson - 2375 Delk Road Marietta GA 30067 2,500,000 2,500,000.00
Delk Road
338 Southgate/Meadowlark 6405 - 6601 Arden Road Amarillo TX 79109 1,520,000 1,518,664.41
Mobile Home Park
313 Parker Plaza West 2109 West Parker Road Plano TX 75080 3,500,000 3,500,000.00
312 Parkridge Village 5252 Orange Avenue San Diego CA 92115 2,650,000 2,648,509.73
Apartments
310 Redbird Plaza 4099-4107 Camp Wisdom Dallas TX 75237 1,250,000 1,250,000.00
Shopping Center Road
291 Days Inn Six Flags 95 South Service Road Austell GA 30001 1,800,000 1,797,705.42
346 Chapel Creek 3410 Hilalgo Dallas TX 75220 2,000,000 2,000,000.00
Apartments
320 Clackamas Corner 11750 SE 82nd Ave. Portland OR 97266 1,800,000 1,800,000.00
311 PETsMART 3195 Hempstead Turnpike Levittown NY 11546 1,440,000 1,440,000.00
347 Park Springs 2002 West Irving Blvd. Irving TX 75061 1,425,000 1,425,000.00
Apartments
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
350 Horwitz-Ramada 46,155.46 9.6500 240 240 11/1/16 No 4% of gross rev. 9.5300
Inn - Beaverton
351 Horwitz-Ramada 53,324.77 9.6500 252 252 11/1/17 No 4% of gross rev. 9.5300
Inn - Corvallis
352 Horwitz-Ramada 73,471.96 9.6500 240 240 11/1/16 No 4% of gross rev. 9.5300
Inn - Portland
353 Ramada Inn - 70,632.00 9.4300 264 264 11/1/18 No 4% of gross rev. 9.3100
Seattle
331 Holiday Inn 25,297.63 10.1200 240 240 11/1/16 No 4% of gross rev. 10.0000
Express
316 Howard Johnson - 23,861.12 9.8400 180 240 11/1/11 No 4% of gross rev. 9.7200
Delk Road
338 Southgate/Meadowlark 12,849.59 9.0900 59 299 10/1/01 No 50 per pad 8.9700
Mobile Home Park
313 Parker Plaza West 29,347.91 8.9900 120 300 11/1/06 No 0.15 per sq. ft. 8.8700
312 Parkridge Village 21,056.10 8.8600 59 359 10/1/01 No 250 per unit 8.7200
Apartments
310 Redbird Plaza 10,610.05 9.1400 120 300 11/1/06 No 0.15 per sq. ft. 9.0200
Shopping Center
291 Days Inn Six Flags 17,669.58 10.2500 239 239 10/1/16 No 4% of gross rev. 10.1300
346 Chapel Creek 16,100.47 8.8400 120 336 11/1/06 No 250 per unit 8.7200
Apartments
320 Clackamas Corner 15,676.52 9.4600 120 300 11/1/06 No 0.15 per sq. ft. 9.3200
311 PETsMART 12,601.26 9.5200 120 300 11/1/06 No 0.15 per sq. ft. 9.4000
347 Park Springs 11,647.85 8.6800 120 300 11/1/06 No 250 per unit 8.5600
Apartments
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
350 Horwitz-Ramada 0.0400 0.0750 First Union
Inn - Beaverton
351 Horwitz-Ramada 0.0400 0.0750 First Union
Inn - Corvallis
352 Horwitz-Ramada 0.0400 0.0750 First Union
Inn - Portland
353 Ramada Inn - 0.0400 0.0750 First Union
Seattle
331 Holiday Inn 0.0400 0.0750 First Union
Express
316 Howard Johnson - 0.0400 0.0750 First Union
Delk Road
338 Southgate/Meadowlark 0.0400 0.0750 First Union
Mobile Home Park
313 Parker Plaza West 0.0400 0.0750 First Union
312 Parkridge Village 0.0600 0.0750 LJ Melody
Apartments
310 Redbird Plaza 0.0400 0.0750 First Union
Shopping Center
291 Days Inn Six Flags 0.0400 0.0750 First Union
346 Chapel Creek 0.0400 0.0750 First Union
Apartments
320 Clackamas Corner 0.0600 0.0750 Key Corp
311 PETsMART 0.0400 0.0750 First Union
347 Park Springs 0.0400 0.0750 First Union
Apartments
-49-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
357 Glenwood Village 12611 Montgomery Albuquerque NM 87111 2,000,000 2,000,000.00
S.C. Boulevard
358 Casa Claire 1125 Hillcrest Street Mesquite TX 75149 2,450,000 2,450,000.00
Apartments
334 Comfort Inn - 1023 East 23rd Street Panama City FL 32405 3,161,000 3,161,000.00
Panama City
295 Westside 2647 Broadway New York NY 10025 2,500,000 2,500,000.00
Apartments
297 Rancho Niguel 25500 Rancho Niguel Road Laguna Niguel CA 92677 3,739,000 3,739,000.00
Medical Building
289 Days Inn North 4610 Rusina Rd. Colorado CO 80907 1,720,000 1,720,000.00
Springs
296 Days Inn South 2850 South Circle Drive Colorado CO 80906 2,300,000 2,300,000.00
Springs
359 Metro Office 202 West Berry Street Fort Wayne IN 46802 5,300,000 5,300,000.00
Building
309 Riverside 2410 Riverside Drive Austin TX 78741 4,000,000 4,000,000.00
Shopping Center
348 Comfort Inn 7700 Two Notch Road Columbia SC 29223 1,850,000 1,850,000.00
Columbia
349 Comfort Inn Sugar 5111 North Service Road Charlotte NC 28269 2,200,000 2,200,000.00
Creek
333 Melbourne Village 1270 North Wickham Road Melbourne FL 32935 4,600,000 4,600,000.00
Plaza
360 Park Place 3761 Nova Road Port Orange FL 32119 4,300,000 4,300,000.00
Shopping Center
345 Estes - Best 8738 International Drive Orlando FL 32819 21,000,000 21,000,000.00
Western - Orlando
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
357 Glenwood Village 16,688.16 8.9300 120 300 11/1/06 No 0.15 per sq. ft. 8.8100
S.C.
358 Casa Claire 19,872.12 9.0900 120 360 11/1/06 No 250 per unit 8.9500
Apartments
334 Comfort Inn - 31,219.79 10.3400 240 240 11/1/16 No 4% of gross rev. 10.2200
Panama City
295 Westside 20,706.68 8.8400 120 300 11/1/06 No 250 per unit 8.7000
Apartments
297 Rancho Niguel 30,935.28 9.1100 120 330 11/1/06 No 0.15 per sq. ft. 8.9700
Medical Building
289 Days Inn North 16,941.68 10.3000 240 240 11/1/16 No 4% of gross rev. 10.1800
296 Days Inn South 22,654.58 10.3000 240 240 11/1/16 No 4% of gross rev. 10.1800
359 Metro Office 44,804.51 9.0900 120 300 11/1/06 No 0.15 per sq. ft. 8.9500
Building
309 Riverside 40,976.18 9.1700 180 180 11/1/11 No 0.20 per sq. ft. 9.0300
Shopping Center
348 Comfort Inn 17,523.23 9.7300 240 240 11/1/16 No 4% of gross rev. 9.6100
Columbia
349 Comfort Inn Sugar 20,550.00 9.5300 240 240 11/1/16 No 4% of gross rev. 9.4100
Creek
333 Melbourne Village 37,126.30 8.7700 120 324 11/1/06 No 0.15 per sq. ft. 8.6300
Plaza
360 Park Place 34,406.83 8.6700 120 324 11/1/06 No 0.20 per sq. ft. 8.5300
Shopping Center
345 Estes - Best 195,462.07 9.8900 264 264 11/1/18 No 4% of gross rev. 9.7700
Western - Orlando
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
357 Glenwood Village 0.0400 0.0750 First Union
S.C.
358 Casa Claire 0.0600 0.0750 LJ Melody
Apartments
334 Comfort Inn - 0.0400 0.0750 First Union
Panama City
295 Westside 0.0600 0.0750 Key Corp
Apartments
297 Rancho Niguel 0.0600 0.0750 LJ Melody
Medical Building
289 Days Inn North 0.0400 0.0750 First Union
296 Days Inn South 0.0400 0.0750 First Union
359 Metro Office 0.0600 0.0750 Key Corp
Building
309 Riverside 0.0600 0.0750 LJ Melody
Shopping Center
348 Comfort Inn 0.0400 0.0750 First Union
Columbia
349 Comfort Inn Sugar 0.0400 0.0750 First Union
Creek
333 Melbourne Village 0.0600 0.0750 Key Corp
Plaza
360 Park Place 0.0600 0.0750 Key Corp
Shopping Center
345 Estes - Best 0.0400 0.0750 First Union
Western - Orlando
-50-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
342 Estes - HoJo 6051 Irlo Bronson Kissimmee FL 34747 5,110,000 5,110,000.00
Main Gate - Memorial Highway
Kissimmee
361 Magnolia Gardens 15, 17 & 19 Fordyce New MIlford CT 06776 1,370,000 1,370,000.00
Court
362 Promenade Center 4440 South Maryland Las Vegas NV 89119 2,870,000 2,870,000.00
Parkway
330 911 North Buffalo 911 North Buffalo Drive Las Vegas NV 89128 2,575,000 2,575,000.00
Drive
344 Town Center Plaza SEC Fred Waring Dr. & Palm Desert CA 92260 9,350,000 9,350,000.00
Town Ctr
336 Naugatuck 50 Rado Drive Naugatuck CT 06770 3,211,000 3,211,000.00
Industrial
292 Multiflex VI 2540 Alamo, S.E. & 2500 Albuquerque NM 87106 2,215,000 2,215,000.00
Yale Blvd. S.E
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
342 Estes - HoJo 47,562.44 9.8900 264 264 11/1/18 No 4% of gross rev. 9.7700
Main Gate -
Kissimmee
361 Magnolia Gardens 10,748.45 8.7200 120 360 11/1/06 No 250 per unit 8.5800
362 Promenade Center 23,523.15 9.0000 84 330 11/1/03 No 0.15 per sq. ft. 8.8600
330 911 North Buffalo 21,632.51 9.2900 120 330 11/1/06 No 0.15 per sq. ft. 9.1700
Drive
344 Town Center Plaza 73,756.92 8.7800 120 360 11/1/06 No 0.15 per sq. ft. 8.6600
336 Naugatuck 27,431.98 9.2200 120 300 11/1/06 No 0.15 per sq. ft. 9.1000
Industrial
292 Multiflex VI 20,820.59 9.6200 240 240 11/1/16 No 0.15 per sq. ft. 9.5000
</TABLE>
- -------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- -------------------------------------------------------------------------
342 Estes - HoJo 0.0400 0.0750 First Union
Main Gate -
Kissimmee
361 Magnolia Gardens 0.0600 0.0750 Key Corp
362 Promenade Center 0.0600 0.0750 LJ Melody
330 911 North Buffalo 0.0400 0.0750 First Union
Drive
344 Town Center Plaza 0.0400 0.0750 First Union
336 Naugatuck 0.0400 0.0750 First Union
Industrial
292 Multiflex VI 0.0400 0.0750 First Union
-51-
<PAGE>
EXHIBIT B
MORTGAGE FILE SCHEDULE
None.
-28-
<PAGE>
EXHIBIT C
MORTGAGE PROPERTIES SUBJECT TO
SECONDARY LIENS
<PAGE>
Merrill Lynch
Control No. Property
- ----------- --------
296 Days Inn South
344 Town Center Plaza
263 Oxford - Runaway Bay II Apartments
-29-
<PAGE>
EXHIBIT D
LIST OF PRINCIPAL BORROWERS
WITH MULTIPLE MORTGAGE LOANS
-30-
<PAGE>
<TABLE>
ML
MERRILL LYNCH BORROWER CONCENTRATION
<CAPTION>
Control # Property Name Property Type Orig. Balance 11/1/96 Cutt-off Balance
<C> <S> <C> <C> <C> <C>
201 JMA - Ashford On The Green Apts. Multifamily 3,450,000.00 3,444,409.56
203 JMA - Brookmore Hollow Apartments Multifamily 1,811,661.00 1,808,761.78
242 JMA - Woodcreek Village Apartments Multifamily 820,000.00 818,671.26
-----------------
6,071,842.60 0.53%
210 INT-Deer Creek Apartments Multifamily 3,326,100.00 3,315,902.31
215 INT-6200 Gessner Apartments Multifamily 10,000,000.00 9,969,340.40
218 INT-The Lodge Apartments Multifamily 4,553,500.00 4,539,539.15
</TABLE>
-8-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
224 INT-Regency Walk Apartments Multifamily 4,360,000.00 4,346,632.41
-----------------
22,171,414.27 1.95%
216 P&K-Glendale Shadows Multifamily 1,800,000.00 1,793,876.54
220 P & K-Olive Gardens Apartments Multifamily 1,850,000.00 1,843,706.44
-----------------
3,637,582.98 0.32%
232 EW - Sorrento Creek Industrial Park Industrial 2,450,000.00 2,445,213.34
233 EW - Sorrento Roselle Industrial Park Industrial 1,600,000.00 1,596,807.73
-----------------
4,042,021.07 0.36%
234 1212 Westheimer Apartments Multifamily 2,990,000.00 2,982,058.38
235 BCM-Westheimer Court Apts. Multifamily 720,000.00 718,140.97
237 Westheimer House Multifamily 1,200,000.00 1,196,901.62
-----------------
4,897,100.98 0.43%
236 AB - Westgate @ Fairfield Office 4,163,000.00 4,142,239.42
200 AB - Sixty-Five Madison Avenue Office 3,691,000.00 3,672,470.28
-----------------
7,814,709.70 0.69%
243 K&S - North County Village Mobile Home Park 8,430,000.00 8,415,069.13
246 K&S - Pioneer Village MHP Mobile Home Park 1,870,000.00 1,866,925.42
-----------------
10,281,994.55 0.90%
</TABLE>
-9-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
244 SHL - San Antonio Station Apts. Multifamily 3,030,000.00 3,024,633.39
245 SHL - Village Green Apartments Multifamily 4,900,000.00 4,891,321.32
-----------------
7,915,954.71 0.70%
250 Belfonti-Stonebridge Apartments Multifamily 1,450,000.00 1,444,802.61
252 Belfonti-Greenbriar Hills Apartments Multifamily 4,350,000.00 4,334,407.84
-----------------
5,779,210.45 0.51%
263 Oxford-Runaway Bay II Multifamily 4,522,000.00 4,516,387.83
264 Oxford-Hunters Chase Multifamily 9,081,000.00 9,069,729.74
265 Oxford-Runaway Bay Multifamily 9,259,000.00 9,247,508.82
266 Oxford-Island Club Multifamily 10,120,000.00 10,107,440.25
267 Oxford-Oaks at Multifamily 11,070,000.00 11,056,261.22
-----------------
43,997,327.86 3.87%
272 KFS-Sunset Trails Multifamily 1,700,000.00 1,698,147.46
273 KFS-Sunset Terrace Multifamily 2,442,400.00 2,439,448.54
274 KFS-Sunset Pointe Multifamily 3,000,000.00 2,996,374.72
277 KFS-Sycamore Ridge Multifamily 11,468,600.00 11,454,741.05
-----------------
18,588,711.78 1.63%
276 KFS-Sunset Village Multifamily 5,650,000.00 5,643,172.40
</TABLE>
-10-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
275 KFS-Citrus Sunset Multifamily 3,660,000.00 3,655,577.16
278 KFS-Sunset Apartment Multifamily 14,039,000.00 14,022,034.92
-----------------
23,320,784.48 2.05%
299 Shilo Inn-Salem Hospitality 5,470,000.00 5,462,336.30
300 Shilo Inn-Tacoma Hospitality 6,770,000.00 6,760,514.94
303 Shilo Inn-Seaside Hospitality 9,510,000.00 9,496,676.08
307 Shilo Inn-Portland Hospitality 14,750,000.00 14,729,334.62
-----------------
36,448,861.94 3.20%
321 Cap-Oakwood Multifamily 257,300.00 257,059.12
322 Cap-Millbrook Multifamily 436,000.00 435,592.13
323 Cap-Maplewood Multifamily 1,272,200.00 1,271,010.83
324 Cap-Knollwood Multifamily 3,828,000.00 3,824,422.80
325 Cap-Clubhouse Multifamily 1,571,500.00 1,570,031.59
-----------------
7,358,116.47 0.65%
350 Horwitz-Ramada Inn-Beaverton Hospitality 4,900,000.00 4,900,000.00
351 Horwitz-Ramada Inn-corvallis Hospitality 5,750,000.00 5,750,000.00
352 Horwitz-Ramada Inn-Portland Hospitality 7,800,000.00 7,800,000.00
353 Horwitz-Ramada Inn-Seattle Hospitality 7,850,000.00 7,850,000.00
-----------------
26,300,000.00 2.31%
342 Hojo-Kissimmee Hospitality 5,110,000.00 5,110,000.00
</TABLE>
-11-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
345 Best Western orlando Hospitality 21,000,000.00 21,000,000.00
-----------------
26,110,000.00 2.29%
205 Capital Tech Center Office 1,253,800.00 1,247,389.50
254 Colinas Business Park Office 1,670,000.00 1,667,263.19
219 Mount View Business Park Industrial 1,771,400.00 1,761,866.69
248 Westec Plaza Office 896,000.00 893,751.32
-----------------
5,570,270.70 0.49%
293 JF-Commons West Multifamily/retail 2,200,000.00 2,198,139.89
306 JF-Collegetown Plaza Multifamily/Retail 7,000,000.00 6,996,152.45
-----------------
9,194,292.34 0.81%
348 Comfort Inn-Columbia Hospitality 1,850,000.00 1,850,000.00
349 Comfort Inn-Sugar Hospitality 2,200,000.00 2,200,000.00
-----------------
4,050,000.00 0.36%
333 Edison-Melbourne Anchored Shopping
Center 4,600,000.00 4,600,000.00
360 Edison-Park Place Plaza Anchored Shopping
Center 4,300,000.00 4,300,000.00
Total Pool Balance $1,138,308,859.76
================================================================================================================================
</TABLE>
-12-
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of November 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 November 1, 1996 (the "Cut-off Date"), among
the Purchaser as depositor, First Union National Bank of North Carolina as
master servicer (in such capacity, the "Master Servicer"), CRIIMI MAE Services
Limited Partnership as special servicer (in such capacity, the "Special
Servicer") and State Street Bank and Trust Company 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 November 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 subservicing strip on one Mortgage
Loan (control number 23), which has been retained by the entity from which the
Seller acquired such Mortgage Loans, shall not be part of REMIC I 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
Mortgage Loans identified on the Mortgage Loan Schedule shall hereinafter be
referred to as the "First Union Mortgage Loans.") The First
<PAGE>
Union Mortgage Loans will have an aggregate principal balance of $580,717,843.40
(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 $1,138,310,835. The purchase and sale of the First Union Mortgage
Loans shall take place on November 25, 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 100% 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
other than the primary servicing rights. 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 Files so delivered will be held by the Trustee in escrow at
all
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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 State Street Bank and Trust Company, as trustee
for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series
1996-C2;
(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 State Street Bank and Trust Company, as trustee for
the registered holders of Merrill Lynch Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1996-C2, in
recordable form;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan in favor of State Street Bank and Trust
Company, as trustee for the registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1996-C2;
(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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(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 State
Street Bank and Trust Company, as trustee for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1996-C2.
(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 or at
the direction of the Master Servicer to the appropriate sub-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 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
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<PAGE>
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 articles of assocoiation, 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.
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<PAGE>
(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
November __, 1996 (the "Underwriting Agreement") and the Certificate
Purchase Agreement, dated as of November __, 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 Certificateholders 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.
(iii) The information pertaining to the Mortgage Loan set
forth in the Mortgage Loan Schedule is true,
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<PAGE>
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 Mortgage 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 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; 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>
(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 and 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 non-lien 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. A UCC financing
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<PAGE>
statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in the personal property, granted under
such mortgage for which perfection is accomplished by the filing of a UCC
financing statement; any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid and enforceable first lien
and first priority security interest on the property described therein,
provided that enforceability may be limited by bankruptcy or other laws
affecting creditor's rights or by the application of the rules of equity.
(xviii) The related Mortgage Note and Mortgage do not require
the Mortgagee thereof to release any portion of the related Mortgaged
Property from the lien of the Mortgage that would have a material and
adverse affect on the related Mortgage Loan except upon payment in full of
the Mortgage Loan.
(xix) As of 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 as of the date
hereof 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 were thirty (30) or more 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.
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<PAGE>
(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 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
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<PAGE>
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 Site Assessment was performed
with respect to the related Mortgaged Property. Such Phase I Environmental
Site Assessment was performed within eight (8) months (or 15 months with
respect to two (2) 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 an amount of money considered
sufficient by the Seller, based upon the related environmental reports, to
cure and remedy such condition or circumstance as recommended in the Phase
I or, where applicable, 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,
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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 or those
which are initially placed on, in or under the Mortgaged Property after
foreclosure or other taking of title to the Mortgaged Property by the
holder of the Mortgage. To the best of the Seller's knowledge, having made
no independent inquiry other than reviewing Phase I and Phase II (where
applicable) Environmental Site Assessments, (i) the Mortgaged Property is
in material compliance with all applicable federal, state and local laws
pertaining to environmental regulation, contamination or clean-up, and
(ii) no notice of violation of such laws has 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). To the extent any material violation was disclosed, there
has been escrowed an amount of money considered sufficient by the Seller,
based upon the related environmental reports, to cure and remedy such
condition or circumstance as recommended in the Phase I or Phase II
Environmental Site Assessment.
(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
such lien may be 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. A list of Mortgaged Properties subject to secondary
liens is attached hereto as Exhibit C.
(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
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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) If the principal balance of the related Mortgage
Loan is greater than $5.0 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.
(xxxix) 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 or, if consent of the
lessor thereunder is required, it has been obtained prior to the Closing
Date;
(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 set forth in the Ground Lease, 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;
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(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) 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 and any exceptions stated in the related title insurance
policy or opinion of title, which exceptions 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, (2) the use of such Mortgaged Property for the use
currently being made thereof, or (3) the value of the Mortgaged Property.
(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 curable
default under such Ground Lease before the lessor thereunder may terminate
such Ground Lease; and
(I) Except for the Mortgaged Property known as Islander Marina
(set forth as Mortgage Loan 82 on Exhibit A hereto, "Islander Marina"),
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) Except for Islander Marina, 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.
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(L) Except for the Mortgaged property known as Allflex USA,
Inc. (set forth as Mortgage Loan 146 on Exhibit A hereto), the Ground
Lessor is required to enter into a new lease upon termination of the
Ground Lease for any reason, including the rejection of the Ground Lease
in bankruptcy, and (except with respect to Islander Marina) for any
reason, upon the request of lender.
(xl) 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.
(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.
(xli) As of the Cut-off Date, the aggregate principal amount
of any Mortgage Loan or group of Mortgage Loans made to one borrower or
group of affiliated borrowers does not exceed $56,979,000. A list of
borrowers or groups of affiliated borrowers with multiple Mortgage Loans
is attached hereto as Exhibit D.
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(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 as
described in Section 3(b)(xxvi) 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 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).
-16-
<PAGE>
(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 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
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<PAGE>
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 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;
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<PAGE>
(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 relating to the First Union Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the statements
therein relating to the First Union Mortgage Loans, 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 relating to the First Union
Mortgage Loans or omitted or omits to state therein a material fact necessary in
order to make the statements therein related to the First Union Mortgage Loans,
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
(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
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<PAGE>
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, in each case
solely 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.
(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
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<PAGE>
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 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
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<PAGE>
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
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
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<PAGE>
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 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
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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).
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
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<PAGE>
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.
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<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
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) 383-7407
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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<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
-27-
<PAGE>
FU LOANS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
1 Park Victoria 2312 Victoria Drive Kansas City KS 66106 2,607,000 2,588,494.07
2 Woodcrest 3903 Camelot Circle Decatur IL 62526 4,728,000 4,694,438.03
3 Morningside 2401 Jammes Rd Jacksonville FL 32210 1,658,000 1,646,230.60
4 Charter Oaks 8196 Lincoln Avenue Evansville IN 47715 3,700,000 3,685,530.42
5 Seville 1420 North Meridian Tallahassee FL 32303 1,380,000 1,371,005.04
Road
6 Casa Del Lago 3140 Kearsage Drive Lake Havasu AZ 86406 2,000,000 1,991,554.06
City
7 Park Colony 11200 Huffmeister Houston TX 77065 1,425,000 1,414,925.32
8 Northside Villas 2711 Allen Road Tallahassee FL 32312 3,036,000 3,019,786.93
9 Rolling Hills 280 John Knox Road Tallahassee FL 32303 3,108,000 3,086,898.97
10 Stonegate 217 White Drive Tallahassee FL 32304 1,106,000 1,100,332.51
11 Villager 22 Wright Parkway Fort Walton FL 32548 568,000 564,952.82
Beach
12 Wellington Place 10803 Green Creek Drive Houston TX 77070 2,451,000 2,433,671.54
13 Kimberly Club 3000 East Kimberly Road Davenport IA 52807 9,000,000 8,962,951.15
14 Williamstown Bay 3300 East Ramsey Avenue Cudahy WI 53110 850,000 846,987.18
III
15 Lakewood 1542 Arcadia Drive Jacksonville FL 32207 1,950,000 1,938,104.70
16 Turtle Place 455 Eastdale Road South Montgomery AL 36117 2,450,000 2,440,917.05
17 Park View 3101 East Artesia Long Beach CA 90805 2,531,000 2,517,084.22
Boulevard
18 University Place 1205 University Avenue Columbia MO 65201 4,200,000 4,182,328.80
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Park Victoria 20,729.40 8.3500 77 293 4/1/03 No 255 per unit 8.2300
2 Woodcrest 37,594.41 8.3500 77 293 4/1/03 No 200 per unit 8.2300
3 Morningside 13,183.49 8.3500 77 293 4/1/03 No 200 per unit 8.2300
4 Charter Oaks 29,771.04 9.0000 113 353 4/1/06 No 200 per unit 8.8800
5 Seville 11,463.01 8.8750 77 293 4/1/03 No 274 per unit 8.7550
6 Casa Del Lago 15,555.80 8.6250 293 353 4/1/21 No 200 per unit 8.5050
7 Park Colony 11,354.70 8.3750 77 293 4/1/03 No 205 per unit 8.2550
8 Northside Villas 24,087.94 8.6250 77 323 4/1/03 No 281 per unit 8.5050
9 Rolling Hills 25,288.81 8.6250 77 293 4/1/03 No 200 per unit 8.5050
10 Stonegate 8,948.65 8.8500 113 323 4/1/06 No 225 per unit 8.7300
11 Villager 4,496.71 8.6000 113 323 4/1/06 No 332 per unit 8.4800
12 Wellington Place 19,530.08 8.3750 77 293 4/1/03 No 200 per unit 8.2550
13 Kimberly Club 70,803.04 8.7500 113 353 4/1/06 No 200 per unit 8.5950
14 Williamstown Bay 6,662.69 8.7100 294 354 5/1/21 No 150 per unit 8.5900
III
15 Lakewood 15,456.31 8.3125 78 294 5/1/03 No 200 per unit 8.1925
16 Turtle Place 18,821.02 8.4900 114 354 5/1/06 No 200 per unit 8.3700
17 Park View 21,153.47 8.9500 114 294 5/1/06 No 227 per unit 8.8300
18 University Place 34,608.83 9.0625 114 324 5/1/06 No 300 per unit 8.9075
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
1 Park Victoria 0.0400 0.0750 First Union
2 Woodcrest 0.0400 0.0750 First Union
3 Morningside 0.0400 0.0750 First Union
4 Charter Oaks 0.0400 0.0750 First Union
5 Seville 0.0400 0.0750 First Union
6 Casa Del Lago 0.0400 0.0750 First Union
7 Park Colony 0.0400 0.0750 First Union
8 Northside Villas 0.0400 0.0750 First Union
9 Rolling Hills 0.0400 0.0750 First Union
10 Stonegate 0.0400 0.0750 First Union
11 Villager 0.0400 0.0750 First Union
12 Wellington Place 0.0400 0.0750 First Union
13 Kimberly Club 0.0750 0.0750 GMAC
14 Williamstown Bay 0.0400 0.0750 First Union
III
15 Lakewood 0.0400 0.0750 First Union
16 Turtle Place 0.0400 0.0750 First Union
17 Park View 0.0400 0.0750 First Union
18 University Place 0.0750 0.0750 GMAC
-32-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
19 The Ashford 115 South Lois Avenue Tampa FL 33609 1,238,000 1,233,709.78
20 Regency on 4350 West Kennedy Blvd Tampa FL 33609 1,809,000 1,802,731.01
Kennedy
21 Hillcrest 105 West Avenue & Woodstown NJ 08098 2,650,000 2,640,635.69
Hillcrest Drive
22 Fountain Place 920 S. Washington Ave Lansing MI 48910 2,054,000 2,041,957.91
23 Parkwood Lofts II 4231 Travis Street Dallas TX 75205 2,221,000 2,214,931.00
24 Courtyard at 2035 Memorial Drive Atlanta GA 30317 2,750,000 2,738,054.33
Glenview
(Manchester Arms)
25 Sunwood Village 4020 Arville Street Las Vegas NV 89103 8,100,000 8,075,742.70
26 Riverplace 102 North River Street Janesville WI 53545 1,033,000 1,030,147.92
27 Cedar Village 217 Cedar Village Drive York PA 17402 3,750,000 3,737,350.95
28 Elsmere 1410 Cypress Avenue Elsmere DE 19805 1,288,000 1,282,405.08
(2)*29 Laurel Woods 1096 Green Holly Road Clark Summit PA 18411 1,488,000 1,481,536.31
(2)*30 Morgan Manor 124 Mountain View Way Scranton PA 18508 2,325,000 2,314,900.48
31 Franklin 165 Franklin Street Bloomfield NJ 07003 925,000 912,999.61
32 Mountain Top 48-A Forest Drive Bloomingdale NJ 07403 1,220,000 1,215,787.85
33 2540 Valentine 2540 Valentine Ave. Bronx NY 10458 825,000 821,562.26
Avenue
34 1512-24 Leland 1512-24 Leland Avenue Bronx NY 10472 1,100,000 1,096,219.80
Avenue
35 Twin Creek 401 South Twin Creek Kileen TX 76543 4,300,000 4,288,322.81
Drive
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
19 The Ashford 9,801.31 8.8200 114 354 5/1/06 No 262 per unit 8.7000
20 Regency on 14,321.95 8.8200 114 354 5/1/06 No 250 per unit 8.7000
Kennedy
21 Hillcrest 21,719.98 9.0000 115 325 6/1/06 No 240 per unit 8.8450
22 Fountain Place 17,137.17 8.6250 79 271 6/1/03 No 200 per unit 8.5050
23 Parkwood Lofts II 17,982.65 9.0700 79 355 6/1/03 No 250 per unit 8.7400
24 Courtyard at 23,550.50 9.2500 295 295 6/1/21 No 210 per unit 9.1300
Glenview
(Manchester Arms)
25 Sunwood Village 63,000.97 8.6250 55 355 6/1/01 No 225 per unit 8.5050
26 Riverplace 8,326.62 9.0200 295 355 6/1/21 No 175 per unit 8.9000
27 Cedar Village 31,397.36 9.2500 115 325 6/1/06 No 250 per unit 9.1300
28 Elsmere 11,030.20 9.2500 115 295 6/1/06 No 294 per unit 9.1300
(2)*29 Laurel Woods 32,653.84 9.2500 115 295 6/1/06 No 250 per unit 9.1300
(2)*30 Morgan Manor 32,653.84 9.2500 115 295 6/1/06 No 286 per unit 9.1300
31 Franklin 9,589.43 9.3750 175 175 6/1/11 No 250 per unit 9.2550
32 Mountain Top 10,106.80 9.1250 115 325 6/1/06 No 306 per unit 9.0050
33 2540 Valentine 7,208.00 9.5000 115 295 6/1/06 No 338 per unit 9.3800
Avenue
34 1512-24 Leland 9,132.10 9.1500 115 325 6/1/06 No 269 per unit 9.0300
Avenue
35 Twin Creek 34,908.62 9.1000 115 355 6/1/06 No 218 per unit 8.9450
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
19 The Ashford 0.0400 0.0750 First Union
20 Regency on 0.0400 0.0750 First Union
Kennedy
21 Hillcrest 0.0750 0.0750 GMAC
22 Fountain Place 0.0400 0.0750 First Union
23 Parkwood Lofts II 0.1250 0.0750 Arbor
24 Courtyard at 0.0400 0.0750 First Union
Glenview
(Manchester Arms)
25 Sunwood Village 0.0400 0.0750 First Union
26 Riverplace 0.0400 0.0750 First Union
27 Cedar Village 0.0400 0.0750 First Union
28 Elsmere 0.0400 0.0750 First Union
(2)*29 Laurel Woods 0.0400 0.0750 First Union
(2)*30 Morgan Manor 0.0400 0.0750 First Union
31 Franklin 0.0400 0.0750 First Union
32 Mountain Top 0.0400 0.0750 First Union
33 2540 Valentine 0.0400 0.0750 First Union
Avenue
34 1512-24 Leland 0.0400 0.0750 First Union
Avenue
35 Twin Creek 0.0750 0.0750 GMAC
-33-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
36 Greentree I 121 Covington Road Thomasville GA 31792 725,000 722,426.99
37 Greentree II 121 Covington Road Thomasville GA 31792 546,000 544,049.38
38 Spring Hollow 2703 N Buckner Blvd Dallas TX 75228 990,000 987,268.32
39 Valleybrook 169 Roscoe Road Newnan GA 30263 1,594,000 1,588,229.50
40 Colony Woods II 3030 Continental Atlanta GA 30331 1,607,000 1,601,182.44
Colony Parkway #1608
41 Stillwater 1 Stillwater Court Savannah GA 31406 985,000 981,350.87
42 Woods on LaMonte 4800 LaMonte Lane Houston TX 77401 8,100,000 8,082,650.61
43 Jennifer Green 741 Park Avenue Orange Park FL 32073 2,434,000 2,426,779.94
44 Heather Ridge 6200 Barnes Road South Jacksonville FL 32216 1,147,000 1,143,597.61
45 Palm Cove 950 W. Main St. Mesa AZ 85201 2,500,000 2,494,475.98
46 Sunset Way I 15385 SW 73rd Terrace Miami FL 33193 1,693,000 1,686,727.94
Circle
47 Merrifield 1027-A Adams Avenue Salisbury MD 21801 2,137,000 2,129,289.29
48 Marabou Mills I 3420 Marabou Mills Indianapolis IN 46214 1,475,000 1,469,677.91
Drive
49 Orchard Place 1901 Dawson Grand Rapids MI 48116 4,300,000 4,291,528.06
50 Country Wood 791 Bateswood Drive Houston TX 77079 2,242,000 2,235,700.66
51 Candleridge Park 1601 Wooded Pine Houston TX 77073 2,309,000 2,303,910.04
52 Millcreek 1823 Stadium Road Wharton TX 77488 1,935,000 1,929,563.24
53 Art Museum 1705 Art Museum Drive Jacksonville FL 32207 2,140,000 2,135,238.72
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
36 Greentree I 6,133.90 9.1000 116 296 7/1/06 No 270 per unit 8.9800
37 Greentree II 4,604.47 9.0600 116 296 7/1/06 No 318 per unit 8.9400
38 Spring Hollow 8,190.94 9.1100 116 326 7/1/06 No 225 per unit 8.9050
39 Valleybrook 13,354.97 8.9800 116 296 7/1/06 No 270 per unit 8.8600
40 Colony Woods II 13,463.88 8.9800 116 296 7/1/06 No 250 per unit 8.8600
41 Stillwater 8,158.43 8.8400 80 296 7/1/03 No 261 per unit 8.7200
42 Woods on LaMonte 66,050.55 9.1500 80 356 7/1/03 No 230 per unit 8.9950
43 Jennifer Green 19,472.53 8.7200 80 326 7/1/03 No 264 per unit 8.6000
44 Heather Ridge 9,176.25 8.7200 80 326 7/1/03 No 238 per unit 8.6000
45 Palm Cove 20,115.57 9.0000 296 356 7/1/21 No 175 per unit 8.8800
46 Sunset Way I 14,022.56 8.8400 80 296 7/1/03 No 292 per unit 8.7200
47 Merrifield 17,933.63 9.0000 116 296 7/1/06 No 291 per unit 8.8800
48 Marabou Mills I 12,378.15 9.0000 116 296 7/1/06 No 254 per unit 8.8800
49 Orchard Place 36,313.70 9.5500 296 356 7/1/21 No 175 per unit 9.4300
50 Country Wood 18,432.46 8.7500 81 297 8/1/03 No 200 per unit 8.6300
51 Candleridge Park 18,520.80 8.7500 81 327 8/1/03 No 200 per unit 8.6300
52 Millcreek 15,908.48 8.7500 81 297 8/1/03 No 200 per unit 8.6300
53 Art Museum 17,090.64 8.7000 81 327 8/1/03 No 238 per unit 8.5800
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
36 Greentree I 0.0400 0.0750 Continental
Wingate
37 Greentree II 0.0400 0.0750 Continental
Wingate
38 Spring Hollow 0.1250 0.0750 Arbor
39 Valleybrook 0.0400 0.0750 Continental
Wingate
40 Colony Woods II 0.0400 0.0750 Continental
Wingate
41 Stillwater 0.0400 0.0750 Continental
Wingate
42 Woods on LaMonte 0.0750 0.0750 GMAC
43 Jennifer Green 0.0400 0.0750 First Union
44 Heather Ridge 0.0400 0.0750 First Union
45 Palm Cove 0.0400 0.0750 First Union
46 Sunset Way I 0.0400 0.0750 Continental
Wingate
47 Merrifield 0.0400 0.0750 Continental
Wingate
48 Marabou Mills I 0.0400 0.0750 Continental
Wingate
49 Orchard Place 0.0400 0.0750 First Union
50 Country Wood 0.0400 0.0750 First Union
51 Candleridge Park 0.0400 0.0750 First Union
52 Millcreek 0.0400 0.0750 First Union
53 Art Museum 0.0400 0.0750 First Union
-34-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
54 Caribbean Towers 11100 62nd Avenue North Seminole FL 33542 1,100,000 1,096,972.41
55 Briar Hill 5946 54th Avenue North Kenneth City FL 33709 1,256,000 1,252,543.05
56 254 Park Avenue 254 Park Avenue South New York NY 10010 15,715,000 15,688,373.82
South
57 298 Mulberry 298 Mulberry New York NY 10012 8,606,000 8,591,418.72
58 304 Mulberry 304 Mulberry New York NY 10012 5,683,000 5,673,371.20
59 Ridgeview 350 Six Flags Drive Austell GA 30001 2,050,000 2,044,509.71
60 Greenhills 7909 North Grandby Kansas City MO 64151 8,100,000 8,086,626.91
Bicycle Club Avenue
61 Nob Hill 600 North Semoran Winter Park FL 32792 4,043,000 4,036,556.86
Boulevard
62 Aragon Woods 8152 Aragon Woods Drive Indianapolis IN 46214 1,155,000 1,151,711.79
63 Dogwood Glenn II 2390 Woodglen Drive Indianapolis IN 46260 1,425,000 1,421,055.16
64 Meadowood 820 Hospital Road Franklin IN 46131 1,067,000 1,064,063.24
65 Colonial Arms 19 East Colonial Drive New Paltz NY 12561 3,525,000 3,518,084.99
66 Lakeview Commons 15205-15235 18th Plymouth MN 55447 2,379,000 2,375,564.32
Avenue North
67 Stratford Village 14222 Kimberly Lane Houston TX 77079 3,654,000 3,652,024.78
68 Royal Sheridan 4200 Sheridan Street Hollywood FL 33021 2,950,000 2,944,042.15
69 Old Archer Court 3001 SW Old Archer Gainesville FL 32608 1,035,000 1,032,291.80
Road #29
70 Desert Palms 210 West Brown Road Mesa AZ 85201 3,175,000 3,169,758.08
71 Spanish Oaks 3125 Clarksville Street Paris TX 75460 1,061,000 1,058,885.13
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
54 Caribbean Towers 9,137.19 8.8750 117 297 8/1/06 No 265 per unit 8.7550
55 Briar Hill 10,433.00 8.8750 117 297 8/1/06 No 200 per unit 8.7550
56 254 Park Avenue 125,035.60 8.8750 81 357 8/1/03 No 225 per unit 8.7550
South
57 298 Mulberry 68,473.20 8.8750 81 357 8/1/03 No 200 per unit 8.7550
58 304 Mulberry 45,216.50 8.8750 81 357 8/1/03 No 213 per unit 8.7550
59 Ridgeview 17,259.71 9.0400 297 297 8/1/21 No 212 per unit 8.9200
60 Greenhills 65,174.43 9.0000 57 357 8/1/01 No 185 per unit 8.8800
Bicycle Club
61 Nob Hill 33,026.64 9.1700 81 357 8/1/03 No 221 per unit 9.0500
62 Aragon Woods 9,433.06 8.6700 81 297 8/1/03 No 269 per unit 8.5500
63 Dogwood Glenn II 11,802.81 8.8400 117 297 8/1/06 No 251 per unit 8.7200
64 Meadowood 8,863.07 8.8750 117 297 8/1/06 No 307 per unit 8.7550
65 Colonial Arms 29,826.15 9.3750 117 327 8/1/06 No 245 per unit 9.2200
66 Lakeview Commons 20,247.38 9.6400 297 357 8/1/21 No 200 per unit 9.5200
67 Stratford Village 29,532.46 9.0500 84 360 11/1/03 No 235 per unit 8.8450
68 Royal Sheridan 24,636.60 9.2200 117 327 8/1/06 No 200 per unit 9.1000
69 Old Archer Court 8,813.61 9.1800 117 297 8/1/06 No 321 per unit 9.0600
70 Desert Palms 25,546.77 9.0000 297 357 8/1/21 No 175 per unit 8.8800
71 Spanish Oaks 8,913.43 9.2900 297 327 8/1/21 No 275 per unit 9.0850
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
54 Caribbean Towers 0.0400 0.0750 First Union
55 Briar Hill 0.0400 0.0750 First Union
56 254 Park Avenue 0.0400 0.0750 First Union
South
57 298 Mulberry 0.0400 0.0750 First Union
58 304 Mulberry 0.0400 0.0750 First Union
59 Ridgeview 0.0400 0.0750 First Union
60 Greenhills 0.0400 0.0750 First Union
Bicycle Club
61 Nob Hill 0.0400 0.0750 First Union
62 Aragon Woods 0.0400 0.0750 Continental
Wingate
63 Dogwood Glenn II 0.0400 0.0750 Continental
Wingate
64 Meadowood 0.0400 0.0750 Continental
Wingate
65 Colonial Arms 0.0750 0.0750 GMAC
66 Lakeview Commons 0.0400 0.0750 First Union
67 Stratford Village 0.1250 0.0750 Continental
Wingate
68 Royal Sheridan 0.0400 0.0750 First Union
69 Old Archer Court 0.0400 0.0750 Continental
Wingate
70 Desert Palms 0.0400 0.0750 First Union
71 Spanish Oaks 0.1250 0.0750 Arbor
-35-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
72 Slate Run 248 S. Heincke Road Miamisburg OH 45342 900,000 898,311.97
73 Olde Mill Landing 11800 Beltsville Drive Beltsville MD 20705 18,500,000 18,478,634.91
74 Lindendale 3580 Lindendale Drive Columbus OH 43204 1,444,000 1,441,228.47
75 Clearlake Village 1239 Bay Area Boulevard Houston TX 77062 2,167,000 2,163,899.85
76 Kingswood Estates 1910 South Chipman Owosso MI 48867 1,842,000 1,838,632.58
Street
77 Ridgewood II 3863 Memorial Drive Unicorporated GA 30032 1,053,000 1,051,002.08
Decatur
78 Country View - 607 Reeve Drive Waunakee WI 53597 1,199,000 1,197,560.00
Wisconsin
79 Country View - 6324 Baker Boulevard Haltom City TX 76118 1,400,000 1,397,544.73
Texas
80 Gregory 3300 16th Street Washington DC 20010 3,500,000 3,497,648.57
Apartments
81 Sutton Place 6838 Everhart Road Corpus Christi TX 78413 2,800,000 2,798,095.74
169 Beverly Hills 8757 Burton Way Beverly Hills CA 90048 5,500,000 5,486,357.62
Carmel
Retirement Hotel
I
170 Beverly Hills 8750 Burton Way Beverly Hills CA 90048 4,500,000 4,488,838.05
Carmel
Retirement Hotel
II
88 Skyline 1570 Sky Valley Drive Reno NV 89503 3,893,000 3,890,842.33
89 Skyview 1590 Sky Valley Drive Reno NV 89503 4,027,000 4,024,768.06
82 Islander Marina 14015 West Tahiti Way Marina Del Rey CA 90292 10,125,000 10,110,315.36
83 Park Towne Place 2201 Park Towne Place Philadelphia PA 19130 38,500,000 38,500,000.00
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
72 Slate Run 7,380.96 8.7200 118 298 9/1/06 No 323 per unit 8.6000
73 Olde Mill Landing 145,539.58 8.7500 118 358 9/1/06 No 255 per unit 8.5950
74 Lindendale 11,705.43 8.5800 118 298 9/1/06 No 240 per unit 8.4600
75 Clearlake Village 17,571.14 8.8750 118 328 9/1/06 No 235 per unit 8.7550
76 Kingswood Estates 15,300.63 8.8750 82 298 9/1/03 No 309 per unit 8.7550
77 Ridgewood II 8,585.75 8.6500 118 298 9/1/06 No 297 per unit 8.5300
78 Country View - 9,270.31 8.5600 298 358 9/1/21 Yes 175 per unit 8.4400
Wisconsin
79 Country View - 11,868.82 9.1250 118 298 9/1/06 No 200 per unit 8.9200
Texas
80 Gregory 29,155.60 9.1900 119 329 10/1/06 No 225 per unit 9.0700
Apartments
81 Sutton Place 23,195.93 9.1250 83 329 10/1/03 No 267 per unit 9.0050
169 Beverly Hills 48,053.32 9.5000 117 297 8/1/06 No 252 per unit 9.3800
Carmel
Retirement Hotel
I
170 Beverly Hills 39,316.35 9.5000 117 297 8/1/06 No 250 per unit 9.3800
Carmel
Retirement Hotel
II
88 Skyline 31,128.08 8.9300 359 359 10/1/26 No 150 per unit 8.8100
89 Skyview 32,199.53 8.9300 359 359 10/1/26 No 150 per unit 8.8100
82 Islander Marina 92,731.52 9.2500 239 239 10/1/16 Yes 299 per unit 9.1300
83 Park Towne Place 313,248.70 9.1250 120 360 11/1/06 No 250 per unit 8.9700
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
72 Slate Run 0.0400 0.0750 Continental
Wingate
73 Olde Mill Landing 0.0750 0.0750 GMAC
74 Lindendale 0.0400 0.0750 Continental
Wingate
75 Clearlake Village 0.0400 0.0750 First Union
76 Kingswood Estates 0.0400 0.0750 First Union
77 Ridgewood II 0.0400 0.0750 Continental
Wingate
78 Country View - 0.0400 0.0750 First Union
Wisconsin
79 Country View - 0.1250 0.0750 Continental
Texas Wingate
80 Gregory 0.0400 0.0750 First Union
Apartments
81 Sutton Place 0.0400 0.0750 First Union
169 Beverly Hills 0.0400 0.0750 First Union
Carmel
Retirement Hotel
I
170 Beverly Hills 0.0400 0.0750 First Union
Carmel
Retirement Hotel
II
88 Skyline 0.0400 0.0750 First Union
89 Skyview 0.0400 0.0750 First Union
82 Islander Marina 0.0400 0.0750 First Union
83 Park Towne Place 0.0750 0.0750 GMAC
-36-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
(3)*108 1111 Beacon 1111 Beacon Street Brookline MA 02146 5,700,000 5,693,749.67
Street***
(3)*108 1101 Beacon 1101 Beacon Street Brookline MA 02146 4,000,000 3,995,613.80
Street***
94 Biggs Park Mall 2800 N. Elm Street Lumberton NC 5,800,000 5,775,323.17
95 5354 Dixie 5354 Dixie Highway Louisville KY 683,000 677,035.33
Highway
96 801 Eastgate 801 Eastgate Drive Cincinnati OH 865,000 857,445.92
Drive
97 1700 East Dublin 1700 East Dublin - Columbus OH 741,000 734,528.82
- Granville Road Granville Road
98 Herndon Centre II 460-490 Elden Street Herndon VA 4,433,000 4,404,270.30
99 Kensington 415 8th Street NW Buffalo MN 55313 1,700,000 1,690,003.51
Cottages
100 G-5054 Miller G-5054 Miller Road Flint MI 849,000 841,585.65
Road
101 Market Place N.C. Highway 180 Shelby NC 28150 6,600,000 6,577,790.46
Shopping Center
102 Norwest Bank 9719 North Hayden Road Scottsdale AZ 1,110,000 1,105,277.37
Building
103 4810 Outer Loop 4810 Outer Loop Louisville KY 657,000 651,262.39
104 4180 Plainfield 4180 Plainfield Grand Rapids MI 48505 659,000 653,423.78
Northeast Northeast
105 Plaza 59 10508 Bennett Road Dunkirk NY 14048 1,264,000 1,259,803.05
106 Rhodes Furniture 4363 Northeast Doraville GA 2,600,000 2,586,394.59
Store Expressway
107 Tower Glen 2216 West County Road D Roseville MN 1,598,000 1,593,952.45
Shopping Center
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
(3)*108 1111 Beacon 78,048.39 9.0000 118 358 9/1/06 No 295 per unit 8.8800
Street***
(3)*108 1101 Beacon 78,048.39 9.0000 118 358 9/1/06 No 0.29 per sq. ft. 8.8800
Street***
94 Biggs Park Mall 50,171.35 9.3750 115 295 6/1/06 No 0.16 per sq. ft. 9.2550
95 5354 Dixie 6,310.81 9.3750 114 234 5/1/06 No 0.13 per sq. ft. 9.2550
Highway
96 801 Eastgate 7,992.46 9.3750 114 234 5/1/06 No 0.67 per sq. ft. 9.2550
Drive
97 1700 East Dublin 6,846.72 9.3750 114 234 5/1/06 No 0.77 per sq. ft. 9.2550
- Granville Road
98 Herndon Centre II 36,928.75 8.9100 113 293 4/1/06 Yes 0.16 per sq. ft. 8.7900
99 Kensington 14,852.84 9.5000 113 293 4/1/06 No 300 per unit 9.3800
Cottages
100 G-5054 Miller 7,844.62 9.3750 114 234 5/1/06 No 0.37 per sq. ft. 9.2550
Road
101 Market Place 53,875.78 9.0000 115 331 6/1/06 No 0.10 per sq. ft. 8.8800
Shopping Center
102 Norwest Bank 9,601.76 9.3750 115 295 6/1/06 No 0.15 per sq. ft. 9.1700
Building
103 4810 Outer Loop 6,070.57 9.3750 114 234 5/1/06 No 0.70 per sq. ft. 9.2550
104 4180 Plainfield 6,196.64 9.6250 114 234 5/1/06 No 0.53 per sq. ft. 9.5050
Northeast
105 Plaza 59 11,043.53 9.5000 116 296 7/1/06 No 0.15 per sq. ft. 9.3800
106 Rhodes Furniture 22,265.93 9.2500 78 294 5/1/03 No 0.05 per sq. ft. 9.1300
Store
107 Tower Glen 13,823.07 9.3750 117 297 8/1/06 No 0.11 per sq. ft. 9.1700
Shopping Center
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
(3)*108 1111 Beacon 0.0400 0.0750 First Union
Street***
(3)*108 1101 Beacon 0.0400 0.0750 First Union
Street***
94 Biggs Park Mall 0.0400 0.0750 First Union
95 5354 Dixie 0.0400 0.0750 First Union
Highway
96 801 Eastgate 0.0400 0.0750 First Union
Drive
97 1700 East Dublin 0.0400 0.0750 First Union
- Granville Road
98 Herndon Centre II 0.0400 0.0750 First Union
99 Kensington 0.0400 0.0750 First Union
Cottages
100 G-5054 Miller 0.0400 0.0750 First Union
Road
101 Market Place 0.0400 0.0750 First Union
Shopping Center
102 Norwest Bank 0.1250 0.0750 Continental
Building Wingate
103 4810 Outer Loop 0.0400 0.0750 First Union
104 4180 Plainfield 0.0400 0.0750 First Union
Northeast
105 Plaza 59 0.0400 0.0750 First Union
106 Rhodes Furniture 0.0400 0.0750 First Union
Store
107 Tower Glen 0.1250 0.0750 Continental
Shopping Center Wingate
-37-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
109 Arcadia Lakes 6432 Two Notch Road Columbia SC 1,500,000 1,496,039.01
Shopping Center
110 Central Shopping 3701 N.W. 7 Street Miami FL 33126 13,650,000 13,603,720.96
Center
111 Cor-West Plaza 703 West Main Street New Britain CT 06053 1,935,000 1,930,098.87
Shopping Center
112 Days Inn - 2735 South Woodlands Flagstaff AZ 1,650,000 1,645,843.44
Flagstaff Village Boulevard
113 Park Forest 3530 Forest Lane Dallas TX 2,255,000 2,249,636.84
Office Building
114 Sims Creek Plaza 1695-1697 Indiantown Jupiter FL 33458 1,450,000 1,440,338.13
Road
115 163 / 174 163 & 174 Newbury Boston MA 1,515,000 1,510,073.85
Newbury Street Street
116 61-65 Brookline 61 - 65 Brookline Boston MA 02215 6,600,000 6,583,465.78
Avenue Avenue
117 Logan Healthcare 587 Washington Street Weymouth MA 02188 630,000 627,951.50
Management Plaza
118 415 Hamburg 415 Hamburg Turnpike Wayne NJ 07470 8,684,000 8,668,450.28
Turnpike
119 Lynnfield 584-592 Main Street Lynnfield MA 01940 1,761,000 1,756,483.22
Shopping Centre
120 SMC 316 3563 Berlin Turnpike Newington CT 06111 2,810,000 2,810,000.00
121 SMC 202 1380 N. Dupont Hway Dover DE 2,848,000 2,848,000.00
122 SMC 452 260 Jimmy Ann Drive Daytona Beach FL 2,810,000 2,810,000.00
125 SMC 343 123 South Kingston Bloomington IN 2,773,000 2,773,000.00
Drive
126 SMC 309 5501 Coldwater Road Fort Wayne IN 2,698,000 2,698,000.00
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
109 Arcadia Lakes 12,716.59 9.1250 81 297 8/1/03 No 0.10 per sq. ft. 8.9700
Shopping Center
110 Central Shopping 118,075.68 9.3750 116 296 7/1/06 No 0.12 per sq. ft. 9.2050
Center
111 Cor-West Plaza 16,738.20 9.3750 117 297 8/1/06 No 0.11 per sq. ft. 9.2550
Shopping Center
112 Days Inn - 16,334.96 10.3750 118 238 9/1/06 No 4% of gross rev. 10.2550
Flagstaff
113 Park Forest 20,095.15 9.7500 81 297 8/1/03 No 0.20 per sq. ft. 9.6300
Office Building
114 Sims Creek Plaza 11,911.23 8.7400 113 293 4/1/06 No 0.30 per sq. ft. 8.6200
115 163 / 174 13,368.38 9.6250 116 296 7/1/06 No 0.20 per sq. ft. 9.5050
Newbury Street
116 61-65 Brookline 57,021.65 9.6250 116 326 7/1/06 No 0.28 per sq. ft. 9.5050
Avenue
117 Logan Healthcare 5,559.13 9.6250 80 296 7/1/03 No 0.20 per sq. ft. 9.5050
Management Plaza
118 415 Hamburg 72,875.81 9.0000 118 298 9/1/06 No 0.23 per sq. ft. 8.8800
Turnpike
119 Lynnfield 15,057.12 9.5000 116 326 7/1/06 No 0.23 per sq. ft. 9.3800
Shopping Centre
120 SMC 316 28,962.41 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
121 SMC 202 29,354.07 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
122 SMC 452 28,962.41 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
125 SMC 343 28,581.05 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
126 SMC 309 27,808.04 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
109 Arcadia Lakes 0.0750 0.0750 GMAC
Shopping Center
110 Central Shopping 0.0900 0.0750 First Union
Center
111 Cor-West Plaza 0.0400 0.0750 First Union
Shopping Center
112 Days Inn - 0.0400 0.0750 First Union
Flagstaff
113 Park Forest 0.0400 0.0750 First Union
Office Building
114 Sims Creek Plaza 0.0400 0.0750 First Union
115 163 / 174 0.0400 0.0750 First Union
Newbury Street
116 61-65 Brookline 0.0400 0.0750 First Union
Avenue
117 Logan Healthcare 0.0400 0.0750 First Union
Management Plaza
118 415 Hamburg 0.0400 0.0750 First Union
Turnpike
119 Lynnfield 0.0400 0.0750 First Union
Shopping Centre
120 SMC 316 0.0400 0.0750 First Union
121 SMC 202 0.0400 0.0750 First Union
122 SMC 452 0.0400 0.0750 First Union
125 SMC 343 0.0400 0.0750 First Union
126 SMC 309 0.0400 0.0750 First Union
-38-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
127 SMC 441 6502 Grape Road Mishawaka IN 2,735,000 2,735,000.00
128 SMC 214 1636 Martin Luther Houma LA 2,286,000 2,286,000.00
King Blvd.
130 SMC 532 7368 Nankin Road Westland MI 2,660,000 2,660,000.00
131 SMC 389 4701 Capitol Blvd Raleigh NC 2,848,000 2,848,000.00
132 SMC 190 5537 N.W. Expressway Warr Acres OK 2,398,000 2,398,000.00
133 SMC 259 9333 Kingston Pike Knoxville TN 2,735,000 2,735,000.00
134 SMC 359 11250 N. Central Dallas TX 2,885,000 2,885,000.00
Expressway
135 SMC 353 17727 Tomball Parkway Houston TX 3,110,000 3,110,000.00
136 SMC 042 2665 HWY 6 South Houston TX 2,585,000 2,585,000.00
137 SMC 276 600 E. Expressway 83 McAllen TX 3,073,000 3,073,000.00
138 SMC 440 1300 E. Beltline Road Richardson TX 2,286,000 2,286,000.00
139 SMC 277 6161 Northwest Loop 410 San Antonio TX 2,623,000 2,623,000.00
140 SMC 360 9860 West Broad St. Glen Allen VA 3,447,000 3,447,000.00
141 SMC 348 1300 Huguenot Road Midlothian VA 3,220,000 3,220,000.00
142 Sigo Shopping 205 East Oneida Street Oswego NY 2,100,000 2,098,631.51
Center
145 Intelligent 5025 Tuggle Road Memphis TN 38118 11,250,000 11,244,167.76
Electronics
146 Allflex USA, Inc. 2805 E. 12th Street Irving TX 75063 1,100,000 1,097,190.10
147 Flagler 251 255 East Flagler Street Miami FL 33131 10,800,000 10,800,000.00
148 Rivers Park 8085 Rivers Avenue North SC 29406 3,000,000 3,000,000.00
Business Center Charleston
- Phase II
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
127 SMC 441 28,189.39 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
128 SMC 214 23,561.59 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
130 SMC 532 27,416.37 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
131 SMC 389 29,354.07 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
132 SMC 190 24,715.96 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
133 SMC 259 28,189.39 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
134 SMC 359 29,735.43 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
135 SMC 353 32,054.48 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
136 SMC 042 26,643.36 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
137 SMC 276 31,673.13 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
138 SMC 440 23,561.59 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
139 SMC 277 27,035.02 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
140 SMC 360 35,527.91 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
141 SMC 348 33,188.24 9.2750 180 180 11/1/11 No 0.10 per sq. ft. 9.1550
142 Sigo Shopping 18,212.24 9.6250 119 323 10/1/06 No 0.12 per sq. ft. 9.5050
Center
145 Intelligent 92,550.99 9.2500 119 359 10/1/06 No 0.05 per sq. ft. 9.1300
Electronics
146 Allflex USA, Inc. 11,403.65 9.3750 179 179 10/1/11 Yes 0.22 per sq. ft. 9.2550
147 Flagler 251 89,710.55 8.8750 84 300 11/1/03 No 0.15 per sq. ft. 8.7550
148 Rivers Park 30,539.64 9.0625 120 180 11/1/06 No 0.10 per sq. ft. 8.9425
Business Center
- Phase II
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
127 SMC 441 0.0400 0.0750 First Union
128 SMC 214 0.0400 0.0750 First Union
130 SMC 532 0.0400 0.0750 First Union
131 SMC 389 0.0400 0.0750 First Union
132 SMC 190 0.0400 0.0750 First Union
133 SMC 259 0.0400 0.0750 First Union
134 SMC 359 0.0400 0.0750 First Union
135 SMC 353 0.0400 0.0750 First Union
136 SMC 042 0.0400 0.0750 First Union
137 SMC 276 0.0400 0.0750 First Union
138 SMC 440 0.0400 0.0750 First Union
139 SMC 277 0.0400 0.0750 First Union
140 SMC 360 0.0400 0.0750 First Union
141 SMC 348 0.0400 0.0750 First Union
142 Sigo Shopping 0.0400 0.0750 First Union
Center
145 Intelligent 0.0400 0.0750 First Union
Electronics
146 Allflex USA, Inc. 0.0400 0.0750 First Union
147 Flagler 251 0.0400 0.0750 First Union
148 Rivers Park 0.0400 0.0750 First Union
Business Center
- Phase II
-39-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
149 Normandy Village 7764 Normandy Boulevard Jacksonville FL 2,550,000 2,550,000.00
150 Pelham 6 6 Logue Court Greenville SC 1,750,000 1,750,000.00
151 Kings Court 901 S. Kings Drive Charlotte NC 28204 1,950,000 1,948,734.80
Shopping Center
152 The Port 241 Erie Street Jersey City NJ 07310 17,000,000 16,975,344.30
Authority of
NY/NJ Technical
Center
153 Best Buy 14401 Township Road 212 Findlay OH 45840 18,375,000 18,365,221.50
Distribution
Center
155 Willow Wood 1141-1187 Wantagh Ave. Wantagh NY 6,098,000 6,098,000.00
Shoppes
156 Comfort Inn - 2136 Rockford Street Mount Airy NC 2,600,000 2,596,631.23
Mt. Airy
158 Palmdale 4500 Avenue S Palmdale CA 2,642,000 2,639,643.43
Marketplace
159 Reston 11800, 11840 & Reston VA 10,650,000 10,631,616.04
International 11816-11832 Sunrise
Center Valley Drive
160 Shaw Butte Center Corner of N. 7th Phoenix AZ 1,410,000 1,408,843.38
Street & Thunderbird
Road
161 Valli Hi SE Corner of South Colorado CO 1,870,000 1,868,400.24
Shopping Center Circle Dr. & Airport Springs
Rd.
163 7 Star Mobile 170 Koontz Lane Carson City NV 3,700,000 3,693,905.75
Home Park
164 501 Route 17 501 Route 17 South Paramus NJ 07652 6,591,000 6,586,839.35
South
165 Las Villas del 1325 Las Villas Way Escondido CA 92026 9,233,000 9,226,041.33
Norte
168 Comfort Inn - 600 Fairview Rd. / Simpsonville SC 2,500,000 2,500,000.00
Simpsonville I-385, Exit 27
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
149 Normandy Village 21,399.51 9.0000 120 300 11/1/06 No 0.10 per sq. ft. 8.8800
150 Pelham 6 14,911.28 9.1875 120 300 11/1/06 No 0.10 per sq. ft. 9.0675
151 Kings Court 16,499.57 9.3750 119 329 10/1/06 No 0.15 per sq. ft. 9.2550
Shopping Center
152 The Port 155,697.36 9.2500 239 239 10/1/16 No 0.14 per sq. ft. 9.1300
Authority of
NY/NJ Technical
Center
153 Best Buy 149,505.06 9.1250 119 359 10/1/06 No 0.05 per sq. ft. 9.0050
Distribution
Center
155 Willow Wood 49,615.34 9.1250 84 360 11/1/03 No 0.26 per sq. ft. 9.0050
Shoppes
156 Comfort Inn - 25,306.27 10.1250 119 239 10/1/06 No 4% of gross rev. 10.0050
Mt. Airy
158 Palmdale 22,171.57 9.0000 83 299 10/1/03 No 0.14 per sq. ft. 8.8800
Marketplace
159 Reston 90,984.30 9.2200 82 298 9/1/03 No 0.10 per sq. ft. 9.1000
International
Center
160 Shaw Butte Center 12,319.12 9.5000 83 299 10/1/03 No 0.18 per sq. ft. 9.3800
161 Valli Hi 16,014.34 9.2500 119 299 10/1/06 No 0.20 per sq. ft. 9.1300
Shopping Center
163 7 Star Mobile 32,326.78 9.5000 118 298 9/1/06 No 31 per pad 9.3800
Home Park
164 501 Route 17 56,449.25 9.5200 119 329 10/1/06 No 0.29 per sq. ft. 9.4000
South
165 Las Villas del 83,900.34 10.0000 119 299 10/1/06 No 250 per unit 9.8800
Norte
168 Comfort Inn - 26,105.62 9.5000 180 180 11/1/11 No 4% of gross rev. 9.3800
Simpsonville
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
149 Normandy Village 0.0400 0.0750 First Union
150 Pelham 6 0.0400 0.0750 First Union
151 Kings Court 0.0400 0.0750 First Union
Shopping Center
152 The Port 0.0400 0.0750 First Union
Authority of
NY/NJ Technical
Center
153 Best Buy 0.0400 0.0750 Key Corp
Distribution
Center
155 Willow Wood 0.0400 0.0750 First Union
Shoppes
156 Comfort Inn - 0.0400 0.0750 First Union
Mt. Airy
158 Palmdale 0.0400 0.0750 First Union
Marketplace
159 Reston 0.0400 0.0750 First Union
International
Center
160 Shaw Butte Center 0.0400 0.0750 First Union
161 Valli Hi 0.0400 0.0750 First Union
Shopping Center
163 7 Star Mobile 0.0400 0.0750 First Union
Home Park
164 501 Route 17 0.0400 0.0750 First Union
South
165 Las Villas del 0.0400 0.0750 First Union
Norte
168 Comfort Inn - 0.0400 0.0750 First Union
Simpsonville
-40-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date
Number Property_Name Address City State Zip Code Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C>
171 Charlotte Square 2150 US 41 Port Charlotte FL 3,940,000 3,934,683.15
172 Tamarac Town 8177 North Pine Island Tamarac FL 6,635,000 6,628,003.22
Square Road
173 Riverside Square 8190 Wiles Road Coral Springs FL 8,225,000 8,216,326.52
174 Countryside Lakes 941 Village Trail Port Orange FL 32119 6,800,000 6,788,562.33
175 Village Shopping 19609 NW 57th Ave. Miami FL 33055 2,000,000 1,996,564.87
Center
176 Woodland Park 21711 Ventura Boulevard Woodland Hills CA 4,375,000 4,371,559.61
West Retirement
Hotel
144 Tarzana Town 18607 Ventura Boulevard Tarzana CA 2,973,000 2,973,000.00
Plaza
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Control Monthly Gross Remaining Maturity Ground Underwriting Net
Number Property_Name Payment Rate Term Amort Date Lease Reserves Rate
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C>
171 Charlotte Square 32,813.91 9.1875 171 328 2/1/11 No 0.22 per sq. ft. 9.0675
172 Tamarac Town 54,284.27 9.1875 155 358 10/1/09 No 0.22 per sq. ft. 9.0675
Square
173 Riverside Square 67,292.86 9.1875 184 358 3/1/12 No 0.10 per sq. ft. 9.0675
174 Countryside Lakes 58,821.58 9.3750 118 298 9/1/06 No 292 per unit 9.2550
175 Village Shopping 17,127.64 9.2500 118 298 9/1/06 No 0.26 per sq. ft. 9.1300
Center
176 Woodland Park 38,987.26 9.7500 119 299 10/1/06 No 225 per unit 9.6300
West Retirement
Hotel
144 Tarzana Town 26,085.69 9.8125 120 330 11/1/06 No 0.11 per sq. ft. 9.6925
Plaza
</TABLE>
- ---------------------------------------------------------------------------
Control Subservicing (1)Servicing
Number Property_Name Fees Fees Subservicer
- ---------------------------------------------------------------------------
171 Charlotte Square 0.0400 0.0750 First Union
172 Tamarac Town 0.0400 0.0750 First Union
Square
173 Riverside Square 0.0400 0.0750 First Union
174 Countryside Lakes 0.0400 0.0750 First Union
175 Village Shopping 0.0400 0.0750 First Union
Center
176 Woodland Park 0.0400 0.0750 First Union
West Retirement
Hotel
144 Tarzana Town 0.0400 0.0750 First Union
Plaza
-41-
<PAGE>
EXHIBIT B
MORTGAGE FILE SCHEDULE
None.
<PAGE>
EXHIBIT C
MORTGAGE PROPERTIES SUBJECT TO
SECONDARY LIENS
-2-
<PAGE>
First Union
Control No. Property
- ----------- --------
4 Charter Oaks
6 Casa Del Lago
14 Williamstown Bay III
26 Riverplace
45 Palm Cove
49 Orchard Place
66 Lakeview Commons
70 Desert Palms
78 Country View - Wisconsin
159 Reston International Center
<PAGE>
EXHIBIT D
LIST OF PRINCIPAL BORROWERS
WITH MULTIPLE MORTGAGE LOANS
-3-
<PAGE>
FU
<TABLE>
<CAPTION>
FIRST UNION
BORROWER
Control # Property Name Property Type Orig. Balance 11/1/96 Cutt-off Balance
<C> <S> <C> <C> <C> <C>
88 Skyline Multifamily 3,893,000 3,890,842.33
89 Skyview Multifamily 4,027,000 4,024,768.06
7,915,610.39 0.70%
-----------------
169 Beverly Hills Carmel Retirement Hotel I Multifamily 5,500,000 5,486,357.62
170 Beverly Hills Carmel Retirement Hotel II Multifamily 4,500,000 4,488,838.05
-----------------
9,975,195.67 0.88%
36 Greentree I Multifamily 725,000 722,426.99
37 Greentree II Multifamily 546,000 544,049.38
39 Valleybrook Multifamily 1,594,000 1,588,229.50
40 Colony Woods II Multifamily 1,607,000 1,601,182.44
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
41 Stillwater Multifamily 985,000 981,350.87
46 Sunset Way I Multifamily 1,693,000 1,686,727.94
47 Merrifield Multifamily 2,137,000 2,129,289.29
48 Marabou Mills I Multifamily 1,475,000 1,469,677.91
62 Aragon Woods Multifamily 1,155,000 1,151,711.79
63 Dogwood Glenn II Multifamily 1,425,000 1,421,055.16
64 Meadowood Multifamily 1,067,000 1,064,063.24
69 Old Archer Court Multifamily 1,035,000 1,032,291.80
72 Slate Run Multifamily 900,000 898,311.97
74 Lindendale Multifamily 1,444,000 1,441,228.47
77 Ridgewood II Multifamily 1,053,000 1,051,002.08
-----------------
18,782,598.83 1.65%
54 Caribbean Towers Multifamily 1,100,000 1,096,972.41
55 Briar Hill Multifamily 1,256,000 1,252,543.05
-----------------
2,349,515.46 0.21%
27 Cedar Village Multifamily 3,750,000 3,737,350.95
28 Elsmere Multifamily 1,288,000 1,282,405.08
29 Laurel Woods Multifamily 1,488,000 1,481,536.31
</TABLE>
-2-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
30 Morgan Manor Multifamily 2,325,000 2,314,900.48
31 Franklin Multifamily 925,000 912,999.61
32 Mountain Top Multifamily 1,220,000 1,215,787.85
-----------------
10,944,980.28 0.96%
171 Charlotte Square Retail 3,940,000 3,934,683.15
172 Tamarac Town Square Retail 6,635,000 6,628,003.22
173 Riverside Square Retail 8,225,000 8,216,326.52
-----------------
18,779,012.89 1.65%
95 5354 Dixie Highway Retail 683,000 677,035.33
96 801 Eastgate Drive Retail 865,000 857,445.92
97 1700 East Dublin - Granville Road Retail 741,000 734,528.82
100 G-5054 Miller Road Retail 849,000 841,585.65
103 4810 Outer Loop Retail 657,000 651,262.39
104 4180 Plainfield Northeast Retail 659,000 653,423.78
-----------------
4,415,281.89 0.39%
115 163 / 174 Newbury Street Retail 1,515,000 1,510,073.85
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
116 61-65 Brookline Avenue Multifamily/Retail 6,600,000 6,583,465.78
-----------------
8,093,539.63 0.71%
1 Park Victoria Multifamily 2,607,000 2,588,494.07
2 Woodcrest Multifamily 4,728,000 4,694,438.03
3 Morningside Multifamily 1,658,000 1,646,230.60
7 Park Colony Multifamily 1,425,000 1,414,925.32
12 Wellington Place Multifamily 2,451,000 2,433,671.54
15 Lakewood Multifamily 1,950,000 1,938,104.70
22 Fountain Place Multifamily 2,054,000 2,041,957.91
50 Country Wood Multifamily 2,242,000 2,235,700.66
51 Candleridge Park Multifamily 2,309,000 2,303,910.04
52 Millcreek Multifamily 1,935,000 1,929,563.24
-----------------
23,226,996.11 2.04%
56 254 Park Avenue South Multifamily 15,715,000 15,688,373.82
57 298 Mulberry Multifamily 8,606,000 8,591,418.72
58 304 Mulberry Multifamily 5,683,000 5,673,371.20
-----------------
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
29,953,163.74 2.63%
14 Williamstown Bay III Multifamily 850,000 846,987.18
26 Riverplace Multifamily 1,033,000 1,030,147.92
78 Country View - Wisconsin Multifamily 1,199,000 1,197,560.00
-----------------
3,074,695.10 0.27%
25 Sunwood Villa Multifamily 8,100,000 8,075,742.70
60 Greenhills Bicycle Club Multifamily 8,100,000 8,086,626.91
-----------------
16,162,369.61 1.42%
5 Seville Multifamily 1,380,000 1,371,005.04
8 Northside Villas Multifamily 3,036,000 3,019,786.93
9 Rolling Hills Multifamily 3,108,000 3,086,898.97
10 Stonegate Multifamily 1,106,000 1,100,332.51
11 Villager Multifamily 568,000 564,952.82
19 The Ashford Multifamily 1,238,000 1,233,709.78
20 Regency on Kennedy Multifamily 1,809,000 1,802,731.01
-----------------
12,179,417.06 1.07%
</TABLE>
-5-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
6 Casa Del Lago Multifamily 2,000,000 1,991,554.06
45 Palm Cove Multifamily 2,500,000 2,494,475.98
70 Desert Palms Multifamily 3,175,000 3,169,758.08
-----------------
7,655,788.12 0.67%
33 2540 Valentine Avenue Multifamily 825,000 821,562.26
34 1512-24 Leland Avenue Multifamily 1,100,000 1,096,219.80
-----------------
1,917,782.06 0.17%
120 SMC 316 Retail 2,810,000 2,810,000.00
121 SMC 202 Retail 2,848,000 2,848,000.00
122 SMC 452 Retail 2,810,000 2,810,000.00
125 SMC 343 Retail 2,773,000 2,773,000.00
126 SMC 309 Retail 2,698,000 2,698,000.00
127 SMC 441 Retail 2,735,000 2,735,000.00
128 SMC 214 Retail 2,286,000 2,286,000.00
130 SMC 532 Retail 2,660,000 2,660,000.00
131 SMC 389 Retail 2,848,000 2,848,000.00
132 SMC 190 Retail 2,398,000 2,398,000.00
133 SMC 259 Retail 2,735,000 2,735,000.00
</TABLE>
-6-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
134 SMC 359 Retail 2,885,000 2,885,000.00
135 SMC 353 Retail 3,110,000 3,110,000.00
136 SMC 042 Retail 2,585,000 2,585,000.00
137 SMC 276 Retail 3,073,000 3,073,000.00
138 SMC 440 Retail 2,286,000 2,286,000.00
139 SMC 277 Retail 2,623,000 2,623,000.00
140 SMC 360 Retail 3,447,000 3,447,000.00
141 SMC 348 Retail 3,220,000 3,220,000.00
-----------------
52,830,000.00 4.64%
148 Rivers Park Business Center - Phase II Office 3,000,000 3,000,000.00
149 Normandy Village Retail 2,550,000 2,550,000.00
150 Pelham 6 Industrial 1,750,000 1,750,000.00
-----------------
7,300,000.00 0.64%
43 Jennifer Green Multifamily 2,434,000 2,426,779.94
44 Heather Ridge Multifamily 1,147,000 1,143,597.61
53 Art Museum Multifamily 2,140,000 2,135,238.72
-----------------
5,705,616.27 0.50%
</TABLE>
-7-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C> <C> <C> <C>
73 Olde Mill Landing Multifamily 18,500,000 18,478,634.91
83 Park Towne Place Multifamily 38,500,000 38,500,000.00
-----------------
56,978,634.91 5.01%
Total Pool Balance $1,138,308,859.76
</TABLE>
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