================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM 8-K
------------
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): March 31, 1998
MERRILL LYNCH MORTGAGE INVESTORS, INC.
--------------------------------------------------------------------
(Exact name of registrant as specified in its governing instruments)
DELAWARE 333-38073 13-3416059
- ---------------------------- ------------------------ -------------------
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281
----------------------------------------
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (212) 449-0336
================================================================================
<PAGE>
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 March 31, 1998, a single series of mortgage pass-through certificates,
entitled Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL (the "Certificates"), was issued pursuant to a
pooling and servicing agreement (the "Pooling Agreement") attached hereto as
Exhibit 4.1 and dated as of March 1, 1998, among Merrill Lynch Mortgage
Investors, Inc. as depositor (the "Registrant"), GMAC Commercial Mortgage
Corporation as master servicer, GMAC Commercial Mortgage Corporation as special
servicer, and Norwest Bank Minnesota, National Association as trustee. The
Certificates consist of seventeen classes (each, a "Class") of Certificates,
nine of which Classes are designated as the "Class A-1 Certificates", the "Class
A-2 Certificates", the "Class A-3 Certificates", the "Class A-PO Certificates",
the "Class B Certificates", the "Class C Certificates", the "Class D
Certificates", the "Class E Certificates" and the "Class IO Certificates"
(collectively, the "Offered Certificates"); and eight of which Classes are
designated as the "Class F Certificates", the "Class G Certificates", the "Class
H Certificates", the "Class J Certificates", the "Class K 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 105 fixed rate mortgage loans
(the "Mortgage Loans") having an aggregate principal balance as of March 1, 1998
(the "Cut-off Date") of approximately $646,080,530. Each Mortgage Loan is
secured by a first mortgage lien on a fee simple estate (except as set forth
below) in an income producing property. Thirteen (13) of the Mortgage Loans are
secured by first mortgage liens on the respective borrower's leasehold estate
and the fee simple estate in the related property. Seven (7) of the Mortgage
Loans are secured by a first mortgage lien on the related borrower's leasehold
estate in the respective properties.
All the Mortgage Loans, having an aggregate principal balance of
approximately $646,080,530 (the "Aggregate Cut-Off Date Balance"), were acquired
by the Registrant from Daiwa Finance Corp. ("DFC") pursuant to a Mortgage Loan
Purchase Agreement, dated as of March 1, 1998 (collectively, the "Purchase
Agreement"), between the Registrant and DFC. The purchase price (the "Purchase
Price") for the Mortgage Loans under the Purchase Agreement consisted of a cash
amount equal to (i) 100% of the Aggregate Cut-Off Date Balance plus (ii)
interest accrued on the Mortgage Loans at the related Mortgage Rate. 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"), Legg Mason Wood Walker, Incorporated ("Legg") and
Daiwa Securities America Inc. ("Daiwa Securities") pursuant to an Underwriting
Agreement, dated as of March 25, 1998 (the "Underwriting Agreement"), among the
Registrant, MLPF&S, Legg and Daiwa Securities (pertaining to the Offered
Certificates) and a Certificate Purchase Agreement, dated as of March 31, 1998,
among the Registrant, MLPF&S, Legg and Daiwa Securities (pertaining to the
Private Certificates). On March 31, 1998, the Registrant transferred the
-2-
<PAGE>
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 Certificate Initial Pass-Through
Class Balance Rate
----- ------------------- ---------------------
A-1..................... $132,820,333 6.31%
A-2 .................... $ 82,098,000 6.48%
A-3..................... $235,868,000 6.72%
A-PO ................... $ 1,469,667 N/A(1)
B ...................... $ 38,765,000 6.75%
C ...................... $ 32,304,000 6.75%
D ...................... $ 38,765,000 6.75%
E ..................... $ 9,691,000 6.75%
IO .................... (2) (3)
F ..................... $ 58,147,000 6.25%
G ..................... $ 3,230,000 6.25%
H ...................... $ 4,846,000 6.25%
J ...................... $ 1,615,000 6.25%
K ...................... $ 6,461,530 6.25%
R-I..................... N/A(4) N/A(4)
R-II.................... N/A(4) N/A(4)
R-III................... N/A(4) N/A(4)
- ---------------
(1) The Class A-PO Certificates will not entitle the holders thereof to receive
distributions of interest.
(2) The Class IO Certificates will not have a Certificate Balance nor will they
entitle the holders thereof to receive distributions of principal.
(3) Holders of the Class IO Certificates will be entitled to receive
distributions of interests in an amount equal to the aggregate interest
accrued on the notional amount of each of its Components.
(4) The Class R-I, Class R-II and Class R-III Certificates have no Certificate
Balance and do not bear interest.
The Offered Certificates and the Mortgage Loans are described in more
detail in the Prospectus, dated February 25, 1998, and the Prospectus
Supplement, dated March 25, 1998,
-3-
<PAGE>
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.
-4-
<PAGE>
Item 7. Financial Statements and Exhibits
(a) Financial Statements - Not Applicable
(b) Pro Forma Financial Information - Not Applicable
(c) Exhibits
1.1 Underwriting Agreement, dated as of March 25, 1998, among
Merrill Lynch Mortgage Investors, Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Legg Mason Wood Walker,
Incorporated and Daiwa Securities America Inc.
4.1 Pooling and Servicing Agreement, dated as of March 1, 1998,
among Merrill Lynch Mortgage Investors, Inc. as depositor,
GMAC Commercial Mortgage Corporation as master servicer,
GMAC Commercial Mortgage Corporation as special servicer,
and Norwest Bank Minnesota, National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of March 1, 1998,
between Merrill Lynch Mortgage Investors, Inc. and Daiwa
Finance Corp.
-5-
<PAGE>
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
------------------------------------
Name: Michael M. McGovern
Title: Secretary
Dated: April 14, 1998
-6-
<PAGE>
EXHIBIT INDEX
The following exhibits are being filed herewith:
Exhibit No. Description
- ----------- -----------
1.1 Underwriting Agreement, dated as of March 25, 1998 among
Merrill Lynch Mortgage Investors, Inc., Merrill Lynch,
Pierce, Fenner & Smith and Daiwa Securities America Inc...........
4.1 Pooling and Servicing Agreement, dated as of March 1, 1998,
among Merrill Lynch Mortgage Investors, Inc. as depositor,
GMAC Commercial Mortgage Corporation as master servicer,
GMAC Commercial Mortgage Corporation as special servicer,
and Norwest Bank Minnesota, National Association as trustee.......
99.1 Mortgage Loan Purchase Agreement, dated as of March 1, 1998,
between Merrill Lynch Mortgage Investors, Inc. and Daiwa
Finance Corp......................................................
-7-
MERRILL LYNCH MORTGAGE INVESTORS, INC.
A DELAWARE CORPORATION
UNDERWRITING AGREEMENT
$571,781,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1-CTL
MARCH 25, 1998
<PAGE>
MERRILL LYNCH MORTGAGE INVESTORS, INC.
(a Delaware corporation)
Mortgage Pass-Through Certificates, Series 1998-C1-CTL
UNDERWRITING AGREEMENT
March 25, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
LEGG MASON WOOD WALKER, INCORPORATED
100 Light Street
Baltimore, Maryland 21202
DAIWA SECURITIES AMERICA INC.
Financial Square, 32 Old Slip
New York, NY 10005-3538
Ladies and Gentlemen:
Merrill Lynch Mortgage Investors, Inc., a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Legg Mason Wood Walker, Incorporated ("Legg
Mason") and Daiwa Securities America Inc. ("Daiwa"; Daiwa, Legg Mason and
Merrill Lynch, each an "Underwriter" and, collectively, the "Underwriters"),
with respect to the issue and sale by the Company and the purchase by each
Underwriter of the initial certificate balance set forth in Schedule I hereto of
$571,781,000 aggregate initial certificate balance of the Company's Mortgage
Pass-Through Certificates, Series 1998-C1-CTL (the "Certificates"). 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 commercial mortgage loans (the
"Mortgage Loans") to be purchased from Daiwa Finance Corp. (the "Mortgage Loan
Seller"). The Certificates are to be issued pursuant to a pooling and servicing
agreement, dated as of March 1, 1998 (the "Pooling and Servicing Agreement"),
among the Company as depositor, Norwest Bank Minnesota, National Association as
trustee (the "Trustee"), GMAC Commercial Mortgage Corporation, as master
servicer and special servicer (the "Master Servicer" and the "Special Servicer",
respectively, and, together, the "Servicers"). Certificates issued in book-entry
form will be issued to Cede & Co. as nominee of The Depository Trust Company
("DTC") pursuant to a letter agreement, to be dated as of the Closing Time (as
defined in Section 2(b)) (the "DTC Agreement"), among the Trust Fund, the
Trustee and DTC.
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-38073) relating
to the Certificates, and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"), and
has filed, and proposes to file, such amendments thereto as may have been
required to the date hereof and as shall be required to the effective date
thereof pursuant to the 1933 Act and the rules of the Commission thereunder (the
"1933 Act Regulations"). Such registration statement, as amended at the time
when each becomes effective under the 1933 Act and at the Closing Time defined
below, is referred to herein as the "Registration Statement." The Company
proposes to file with the Commission pursuant to Rule 424(b)(5) under the 1933
Regulations a supplement (the "Prospectus Supplement") to the form of prospectus
(as may be amended in connection with such Prospectus Supplement, the "Basic
Prospectus"; the Basic Prospectus, together with the Prospectus Supplement, the
"Prospectus"). Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) or prior to the effective date of the Registration
Statement, pursuant to Rule 402(a) or 424(a) is hereinafter called a
"preliminary prospectus."
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the meanings given
to them in the Pooling and Servicing Agreement.
1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and as
of the Closing Time referred to in Section 2(b) hereof, and agrees with
each Underwriter as follows:
<PAGE>
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and 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 are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. At the time the Registration Statement became effective and at
the Closing Time, the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act of 1939, as amended (the "1939 Act") and the
rules and regulations of the Commission thereunder (the "1939 Act
Regulations"), and did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit
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. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriters
expressly for use in the Registration Statement or Prospectus.
The Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and the Prospectus
delivered to each Underwriter for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus
was issued and at the Closing Time, did not and
<PAGE>
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial information included in the Registration Statement are
independent certified public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Information. The financial information included in
the Registration Statement and the Prospectus present fairly the
financial position of the Company.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the financial condition, earnings,
business affairs or business prospects of the Company (a "Material
Adverse Effect"), whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which
are material with respect to the Company.
(vi) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(viii) Authorization of Other Agreements. Each of the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale Agreement,
dated as of March 1, 1998, between the Company and the Mortgage Loan
Seller (the "MLPSA") and this Agreement has been duly authorized and,
at the Closing Time, will have been duly executed and delivered by the
Company and will each constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject
(i) to applicable
<PAGE>
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (ii) as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (iii) as to
enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(ix) Description of the Pooling and Servicing Agreement. The
description of the Pooling and Servicing Agreement in the Prospectus
conforms in all material respects with the terms thereof. At the
Closing Time, the Pooling and Servicing Agreement will conform in all
material respects to the description thereof contained in the
Prospectus.
(x) Description of the Certificates. At the Closing Time, the
Certificates will have been duly and validly authorized and executed
by the Trustee, and, assuming authentication as specified in the
Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. The description of the Certificates in the Prospectus
conforms or will conform in all material respects with the terms
thereof and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xi) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and
the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the
Certificates) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of,
or default or a Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, singly or
<PAGE>
in the aggregate, would not result in a Material Adverse Effect, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its assets or properties. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or its affiliates.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company exists or, to the knowledge of the Company,
is imminent.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company threatened, against or affecting the
Company which would reasonably be expected to result in a Material
Adverse Effect, or which would reasonably be expected to materially
and adversely affect the properties or assets of the Company or the
consummation of this Agreement or the performance by the Company or
its obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company is a party or of which
any of its property or assets is the subject which are not described
in the Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed
as required.
(xv) Possession of Intellectual Property. The Company owns or
possesses, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by it, and the Company has not received any notice or is not
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or
<PAGE>
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Certificates hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may be
required under the 1933 Act Regulations, the 1939 Act Regulations or
state securities or blue sky laws.
(xvii) Possession of Licenses and Permits. The Company possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company is
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and the Company has not received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xvii) Tax Returns. The Company has filed all federal, state,
local and foreign tax returns that are required to be filed or has
duly requested extensions thereof and has paid all taxes required to
be paid by it and any related assessments, fines or penalties, except
for any such tax, assessment, fine or penalty that is being contested
in good faith and by appropriate proceedings; and adequate charges,
accruals and reserves have been provided for in respect of all
federal, state, local and foreign taxes for all periods as to which
the tax liability of the Company has not been finally determined or
remains open to examination by applicable taxing authorities.
(xviii) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section
<PAGE>
517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. The Company is not and upon the
issuance and sale of the Certificates as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act"). The
Trust Fund is not required to be registered as an "investment company"
under the 1940 Act.
(xxi) Environmental Laws. Except as described in the Registration
Statement and except such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) the Company is not
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance
with its requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company relating
to Hazardous Materials or Environmental Laws.
(xxii) No Liens. 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
<PAGE>
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
Underwriters of the Certificates, each Underwriter will have good
title to the Certificates purchased by such Underwriter, in each case
free of Liens.
(xxiii) Sale of Mortgage Loans. 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.
(xxiv) Ratings. At the Closing Time, 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").
(xxv) Taxes. Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the MLPSA, 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 Time.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to the Underwriters to
the matters covered thereby.
2. Sale and Delivery to the Underwriters; Closing.
(a) Certificates. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees to purchase from
the Company, at the purchase price set forth in Schedule I, the aggregate
initial certificate balance of Certificates set forth in Schedule I opposite the
name of such Underwriter.
<PAGE>
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, 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, at 10:00 A.M. on or about March 31, 1998 or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
each Underwriter for the account of such Underwriter of certificates for the
Certificates to be purchased by them. The certificates representing the
Certificates shall be registered in the name of Cede & Co., pursuant to the DTC
Agreement and shall be made available for examination and packaging by the
Underwriters in the City of New York not later than 10:00 A.M. on the last
business day prior to the Closing Time.
(c) Denominations; Registration. Certificates for the Certificates shall be
in such denominations and registered in such names as the Underwriters may
request in writing at least one full business day before the Closing Time.
3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company will notify each Underwriter immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Certificates for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any such order is issued, to obtain the lifting thereof
at the earliest possible moment.
<PAGE>
(b) Filing of Amendments. The Company will give each Underwriter
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or revision to either
the Basic Prospectus or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise (other than reports to be filed pursuant to
the 1934 Act), will furnish each Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which
either Underwriter or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to each Underwriter and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to each Underwriter without
charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to each Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus,
if any, as each such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as each such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to each
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Certificates as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the Certificates, any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the
<PAGE>
Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company will furnish to each Underwriter
such number of copies of such amendment or supplement as each such
Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with each Underwriter, to qualify the Certificates for offering
and sale under the applicable securities laws of such states and other
jurisdictions as each such Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the
later of the effective date of the Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Certificates have been so qualified, the Company will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
The Company will also supply each Underwriter with such information as is
necessary for the determination of the legality of the Certificates for
investment under the laws of such jurisdictions as each such Underwriter
may request.
(g) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(h) Rating of Certificates. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Service, a division of
The McGraw Hill Companies, Inc. ("S&P"), and Moody's Investors Service,
Inc. ("Moody's") to provide their respective credit ratings of the
Certificates as described in the Prospectus.
(i) DTC. The Company will cooperate with each Underwriter and use its
best efforts to permit the Certificates to be eligible for clearance and
settlement through the facilities of DTC.
<PAGE>
(j) Restriction on Sale of Securities. During the period from the date
hereof to the Closing Time, the Company will not, without the prior written
consent of the Underwriters, directly or indirectly, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
any other mortgage-related securities of the Company or securities of the
Company that are convertible into, or exchangeable for, the Certificates or
such other securities.
4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Registration Statement
(including any schedules or exhibits and any document incorporated therein
by reference) originally filed and of each amendment or supplement thereto,
(ii) the preparation, printing and delivery to each Underwriter of this
Agreement, the Pooling and Servicing Agreement and such other documents as
may be required in connection with the offering, purchase, sale and
delivery of the Certificates, (iii) the preparation, issuance and delivery
of the certificates for the Certificates to each Underwriter, including any
charges of DTC in connection therewith, (iv) the fees and disbursements of
the Company's accountants and other advisors, (v) the qualification of the
Certificates under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to each Underwriter of
copies of each preliminary prospectus and of the Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses of the
Trustee, the Master Servicer and the Special Servicer, including the fees
and disbursements of counsel for the Trustee, the Master Servicer and the
Special Servicer in connection with the Pooling and Servicing Agreement and
the Certificates and (viii) any fees payable in connection with the rating
of the Certificates.
(b) Termination of Agreement. If this Agreement is terminated by any
Underwriter in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse such Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriter.
5. Conditions of Underwriters' Obligations. The obligations of each
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
<PAGE>
(a) Effectiveness of Registration Statement. At the Closing Time no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for the Master Servicer. At the Closing Time,
each Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Master Servicer, in form and substance
satisfactory to counsel for the Underwriters.
(c) Opinion of Counsel for the Special Servicer. At the Closing Time,
each Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Special Servicer, in form and substance
satisfactory to counsel for the Underwriters.
(d) Opinion of Counsel for the Underwriters. At the Closing Time, each
Underwriter shall have received the favorable opinions, dated as of the
Closing Time, of counsel for the Underwriters. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Underwriters and certificates of public officials.
(e) Officers' Certificate of the Company. At the Closing Time, there
shall not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the financial condition, earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, and each Underwriter shall have received a certificate of the
President or a Vice President of the Company dated as of the Closing Time,
to the effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as
of the Closing Time, (iii) each has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(f) Officers' Certificates of the Master Servicer. At the Closing
Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition, earnings, business
affairs or business prospects of the Master Servicer and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and each
<PAGE>
Underwriter shall have received a certificate of the President or a Vice
President of the Master Servicer, dated as of the Closing Time, to that
effect.
(g) Officers' Certificate of the Special Servicer. At the Closing
Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition, earnings, business
affairs or business prospects of the Special Servicer and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and each Underwriter shall have received a certificate of the
President or a Vice President of the Special Servicer, dated as of the
Closing Time, to that effect.
(h) Accountant's Comfort Letter. At or prior to the time of the
execution of this Agreement, each Underwriter shall have received from
Deloitte & Touche LLP ("Deloitte") a letter dated such date, in form and
substance satisfactory to each Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to each Underwriter with respect to certain financial information
contained in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, each Underwriter
shall have received from Deloitte a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(j) Maintenance of Rating. At the Closing Time, the Certificates shall
have received the ratings set forth in Schedule I and the Company shall
have delivered to each Underwriter a letter dated the Closing Time, from
each such rating agency, or other evidence satisfactory to each
Underwriter, confirming that the Certificates have such ratings.
(k) Opinion of Counsel for Trustee. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Trustee, in form and substance
satisfactory to counsel for the Underwriters.
(l) Opinion of Tax and ERISA Counsel. At the Closing Time, each
Underwriter shall have received a favorable opinion, dated as of the
Closing Time, 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 each such term is defined in the Pooling and Servicing
Agreement) as a real estate mortgage investment conduit within the meaning
of Sections 860A through 86OG of the Internal Revenue Code of 1986, as
amended, and (ii) to the effect that the statements in the Basic Prospectus
and the Prospectus Supplement under the headings
<PAGE>
"Material 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.
(m) Opinion of Counsel for the Company. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters.
(n) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Certificates as herein contemplated, 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 each Underwriter and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by any Underwriter by notice to the
Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter, as the case may be, within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements
<PAGE>
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Computational
Materials, ABS Term Sheets or Collateral Term Sheets distributed by such
Underwriter, unless such untrue statement or alleged untrue statement of a
material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter to the Company expressly for use
in the Registration Statement, the Prospectus, the Computational Materials,
ABS Term Sheets or Collateral Term Sheets and the untrue statement or
alleged untrue statement did not derive from an inaccuracy in the
Seller-Provided Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i), (ii)
or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter agrees to indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows (i) against any and all loss,
liability,
<PAGE>
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), and (ii) against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or alleged untrue
statements made in the Computational Materials, Collateral Term Sheets or ABS
Term Sheets to the extent that such untrue statement or alleged untrue statement
of a material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter expressly for use in the Computational
Materials, the ABS Term Sheets or the Collateral Term Sheets and the untrue
statements or alleged untrue statements did not derive from an inaccuracy in the
Seller-Provided Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
For purposes of this Agreement, "Computational Materials" shall have the
meaning given such term in the No-Action Letter of 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 of February
20, 1995 issued by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the Kidder/PSA Letter, the "No-Action Letters"), but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by such Underwriter. For purposes hereof,
"ABS 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 or
Collateral Term Sheets that have been prepared or delivered to prospective
investors by such Underwriter. For purposes hereof, "Derived Information" means
such portion, if any, of the information delivered to the Company by such
Underwriter for filing with the Commission on Form 8-K and (i) is not contained
in the Prospectus without taking into account information incorporated therein
by reference, and (ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other information)
furnished to such Underwriter by or on behalf of the Company, including but not
limited to any information provided by the Mortgage Loan Seller to the Company
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
<PAGE>
(c) Actions against Parties; Notification. 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 hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. 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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more that 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of
<PAGE>
any losses, liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and such Underwriter on the
other hand from the offering of the Certificates pursuant to this Agreement or
(ii) if the allocation provided by clause (i) 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 such Underwriter on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and such
Underwriter on the other hand in connection with the offering of the
Certificates pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Certificates pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by such Underwriter, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Certificates as set forth on such cover.
The relative fault of the Company on the one hand and such Underwriter on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, or by such Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, each Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay
<PAGE>
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (with the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls each
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. Each Underwriter's obligations to contribute
pursuant to this Section 7 is in proportion to the initial certificate balance
of Certificates set forth opposite its name in Schedule I hereto.
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of each Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of the Certificates to each Underwriter.
9. Termination of Agreement.
(a) Termination; General. Any Underwriter may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the financial condition, earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of such Underwriter, impracticable to market the Certificates or
to enforce contracts for the sale of the Certificates, or (iii) if trading in
any securities of the Company has been suspended or limited by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the NASDAQ National Market System
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental
<PAGE>
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to the Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. 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 Legg Mason shall be directed to Legg Mason Wood Walker,
Incorporated, 100 Light Street, Baltimore, Maryland 21202, Attention: Real
Estate Capital Markets, with a copy to the General Counsel; notices to Daiwa
shall be directed to Daiwa Securities America Inc., Financial Square, 32 Old
Slip, New York, New York 10005-3538, Attention: Commercial Mortgage Department,
with a copy to the General Counsel; 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.
11. Parties. This Agreement shall each inure to the benefit of and be
binding upon each Underwriter, 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 each Underwriter,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of each Underwriter, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
13. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
<PAGE>
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.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters and the Company in accordance with its terms.
Very truly yours,
MERRILL LYNCH MORTGAGE
INVESTORS, INC.
By: /s/ ROBERT FITZPATRICK
------------------------------
Name: Robert Fitzpatrick
Title: Authorized Signatory
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ JOHN GLUSZAK
---------------------------------
Name: John Gluszak
Title: Authorized Signatory
LEGG MASON WOOD WALKER, INCORPORATED
By: /s/ RICHARD JACOBS
---------------------------------
Name: Richard Jacobs
Title: Authorized Signatory
DAIWA SECURITIES AMERICA INC.
By: /s/ RONALD M. STUART
---------------------------------
Name: Ronald M. Stuart
Title: Executive Vice President
<PAGE>
UNDERWRITING AGREEMENT, DATED AS OF MARCH 25, 1998
CUT-OFF DATE: March 1, 1998
CERTIFICATES: Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL
Percent of
Initial Percent of
Percent of Aggregate Initial
Initial Certificate Aggregate
Aggregate Balance Certificate
Certificate or Notional Balance or
Balance Amount to be Notional Amount
Initial or Notional Purchased by to be Purchased
Aggregate Amount to be Legg Mason by Daiwa
Class Certificate Purchased by Wood Walker, Securities
Designation Balance(1) Merrill Lynch & Co. Incorporated America Inc.
- ----------- ------------ ------------------ ------------- ----------------
Class A-1 $132,820,333 34% 33% 33%
Class A-2 $ 82,098,000 34% 33% 33%
Class A-3 $235,868,000 34% 33% 33%
Class A-PO $ 1,469,667 0% 0% 100%
Class B $ 38,765,000 34% 33% 33%
Class C $ 32,304,000 50% 0% 50%
Class D $ 38,765,000 0% 0% 100%
Class E $ 9,691,000 0% 0% 100%
Class IO (5) 0% 0% 100%
================================================================================
(1) Subject to a permitted variance of plus or minus 5%.
(2) 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.
(3) By each of Moody's Investors Service, Inc. and, except with respect to
Class A-PO Certificates, Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.
I-1
<PAGE>
(4) The Class A-PO Certificates will not entitle the holders thereof to receive
distributions of interest, but will entitle such holders to receive
distributions of principal with respect to the Discount Mortgage Loans (as
defined in the Prospectus Supplement).
(5) The Class IO Certificates will not have a principal balance nor will they
entitle the holders thereof to receive distributions of principal, but will
entitle such holders to receive payments of interest equal to the aggregate
of the interest accrued on the notional amount of each of its Components as
described in the Prospectus.
I-2
Execution
================================================================================
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
GMAC COMMERCIAL MORTGAGE CORPORATION
Master Servicer
and
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
Mortgage Pass-Through Certificates
Series 1998-C1-CTL
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms................................................ 2
Accrued Certificate Interest............................................ 3
Accrued Component Interest.............................................. 3
Acquisition Date........................................................ 3
Additional Information.................................................. 3
Additional Right........................................................ 3
Additional Trust Fund Expense........................................... 3
Advance................................................................. 4
Adverse REMIC Event..................................................... 4
Affiliate............................................................... 4
Agreement............................................................... 4
Appraisal............................................................... 4
Appraisal Reduction Amount.............................................. 4
Appraised Value......................................................... 4
Assignment of Leases.................................................... 5
Assumed Scheduled Payment............................................... 5
Authenticating Agent.................................................... 5
Available Distribution Amount........................................... 5
Balloon Mortgage Loan................................................... 6
Balloon Payment......................................................... 6
Bankruptcy Code......................................................... 6
Book-Entry Certificate.................................................. 6
Breach.................................................................. 6
Business Day............................................................ 6
Capitalized Interest Payment............................................ 6
CERCLA.................................................................. 6
Certificate............................................................. 6
Certificate Account..................................................... 6
Certificate Factor...................................................... 7
Certificate Notional Amount............................................. 7
Certificate Owner....................................................... 7
Certificate Principal Balance........................................... 7
Certificate Register.................................................... 7
Certificate Registrar................................................... 7
Certificateholder....................................................... 7
Class................................................................... 8
Class A-PO Certificate.................................................. 8
Class A-PO Fraction..................................................... 8
i
<PAGE>
Class A-PO Principal Distribution Amount................................ 8
Class A-1 Certificate................................................... 8
Class A-2 Certificate................................................... 8
Class A-3 Certificate................................................... 8
Class B Certificate..................................................... 8
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 J Certificate..................................................... 9
Class K Certificate..................................................... 9
Class Prepayment Percentage............................................. 10
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
Component............................................................... 11
Component Notional Amount............................................... 11
Construction Loan....................................................... 11
Construction Loan Default Date.......................................... 11
Construction Reserves................................................... 11
Controlling Class....................................................... 11
Corporate Trust Office.................................................. 11
Corrected Mortgage Loan................................................. 11
Credit Lease............................................................ 11
CSSA Loan File Report................................................... 12
Custodian............................................................... 12
Cut-off Date............................................................ 12
Cut-off Date Balance.................................................... 12
DCR..................................................................... 12
Deemed Due Date......................................................... 12
Defaulted Mortgage Loan................................................. 12
Defeasance Collateral................................................... 12
Defeasance Loan......................................................... 13
Definitive Certificate.................................................. 13
Delinquent Loan Status Report........................................... 13
Depositor............................................................... 13
Depository.............................................................. 13
Depository Participant.................................................. 13
ii
<PAGE>
Determination Date...................................................... 13
Directly Operate........................................................ 13
Discount Mortgage Loan.................................................. 14
Disqualified Organization............................................... 14
Distributable Certificate Interest...................................... 14
Distribution Account.................................................... 14
Distribution Date....................................................... 14
Distribution Date Statement............................................. 14
Document Defect......................................................... 15
Double Net Lease........................................................ 15
Due Date................................................................ 15
Eligible Account........................................................ 15
Encumbered Mortgage Loan................................................ 15
Environmental Assessment................................................ 16
ERISA................................................................... 16
Escrow Payment.......................................................... 16
Event of Default........................................................ 16
Exchange Act............................................................ 16
FDIC.................................................................... 16
FHLMC................................................................... 16
Final Recovery Determination............................................ 16
Fleet Letter of Credit.................................................. 16
FNMA.................................................................... 16
Guarantor............................................................... 16
Guaranty................................................................ 17
Hazardous Materials..................................................... 17
Historical Loan Modification Report..................................... 17
Historical Loss Estimate Report......................................... 17
Holder.................................................................. 17
HUD-Approved Servicer................................................... 17
Impound Reserve......................................................... 17
Independent............................................................. 17
Independent Appraiser................................................... 18
Independent Contractor.................................................. 18
Initial Quarterly Interest Reserve Deposit.............................. 18
Insurance Policy........................................................ 18
Insurance Proceeds...................................................... 18
Insured Balloon Loan.................................................... 19
Insured Event........................................................... 19
Interested Person....................................................... 19
Investment Account...................................................... 19
Issue Price............................................................. 19
Late Collections........................................................ 19
Lease Enhancement Policy................................................ 19
Lease Enhancement Policy Issuer......................................... 19
iii
<PAGE>
Liquidation Event....................................................... 20
Liquidation Proceeds.................................................... 20
Loan Payoff Notification Report......................................... 20
Maintenance Right....................................................... 20
Majority Subordinate Certificateholder.................................. 20
Master Servicer......................................................... 21
Master Servicing Fee.................................................... 21
Master Servicing Fee Rate............................................... 21
Merrill Lynch........................................................... 21
Monthly Payment......................................................... 21
Moody's................................................................. 21
Mortgage................................................................ 21
Mortgage File........................................................... 21
Mortgage Loan........................................................... 23
Mortgage Loan Purchase Agreement........................................ 23
Mortgage Loan Schedule.................................................. 23
Mortgage Loan Seller.................................................... 24
Mortgage Note........................................................... 24
Mortgage Pool........................................................... 24
Mortgage Rate........................................................... 24
Mortgaged Property...................................................... 25
Mortgagor............................................................... 25
Net Aggregate Prepayment Interest Shortfall............................. 25
Net Investment Earnings................................................. 25
Net Investment Loss..................................................... 25
Net Mortgage Rate....................................................... 25
New Lease............................................................... 26
Non-Discount Mortgage Loan.............................................. 26
Nonrecoverable Advance.................................................. 26
Nonrecoverable P&I Advance.............................................. 26
Nonrecoverable Protective Advance....................................... 26
Nonrecoverable Servicing Advance........................................ 26
Non-Registered Certificate.............................................. 26
Non-United States Person................................................ 26
Officers' Certificate................................................... 26
Opinion of Counsel...................................................... 27
Original Component Notional Amount...................................... 27
Original Class Principal Balance........................................ 27
OTS..................................................................... 27
Ownership Interest...................................................... 27
Pass-Through Rate....................................................... 27
Paying Agent............................................................ 27
Percentage Interest..................................................... 28
Percentage Premium...................................................... 28
Periodic Payment........................................................ 28
iv
<PAGE>
Permitted Investments................................................... 28
Permitted Transferee.................................................... 30
Person.................................................................. 30
Phase I Environmental Assessment........................................ 30
P&I Advance............................................................. 30
P&I Advance Date........................................................ 30
Plan.................................................................... 30
Plurality Residual Certificateholder.................................... 30
Policy Termination Event................................................ 30
Prepayment Assumption................................................... 30
Prepayment Interest Excess.............................................. 30
Prepayment Interest Shortfall........................................... 31
Prepayment Premium...................................................... 31
Primary Servicing Office................................................ 31
Prime Rate.............................................................. 31
Principal Distribution Amount........................................... 31
Principal Prepayment.................................................... 32
Prospectus.............................................................. 33
Prospectus Supplement................................................... 33
Protective Advances..................................................... 33
Protective Advance Rate................................................. 33
Public Rating Report.................................................... 33
Purchase Price.......................................................... 33
Qualified Insurer....................................................... 33
Quarterly Interest Reserve Account...................................... 34
Quarterly Pay Interest Deposit.......................................... 34
Quarterly Pay Loan...................................................... 34
Quarterly Pay Loan Interest Excess...................................... 34
Quarterly Payment....................................................... 34
Rated Final Distribution Date........................................... 35
Rating Agency........................................................... 35
Realized Loss........................................................... 35
Record Date............................................................. 35
Recovery Fee............................................................ 35
Registered Certificate.................................................. 36
Regular Certificate..................................................... 36
Reimbursement Rate...................................................... 36
REMIC................................................................... 36
REMIC I................................................................. 36
REMIC I Discount Regular Interest....................................... 36
REMIC I Non-Discount Regular Interest................................... 36
REMIC I PO Regular Interest............................................. 36
REMIC I Regular Interest................................................ 36
REMIC I Remittance Rate................................................. 37
REMIC II................................................................ 37
v
<PAGE>
REMIC II Regular Interest............................................... 37
REMIC II Remittance Rate................................................ 37
REMIC III............................................................... 37
REMIC III Certificate................................................... 37
REMIC Administrator..................................................... 37
REMIC Provisions........................................................ 37
Rents from Real Property................................................ 38
REO Account............................................................. 38
REO Acquisition......................................................... 38
REO Disposition......................................................... 38
REO Extension........................................................... 38
REO Loan................................................................ 38
REO Property............................................................ 39
REO Revenues............................................................ 39
REO Status Report....................................................... 39
REO Tax................................................................. 39
Request for Release..................................................... 39
Required Appraisal...................................................... 39
Required Appraisal Mortgage Loan........................................ 39
Required Appraisal Value................................................ 40
Reserve Account......................................................... 40
Reserve Funds........................................................... 40
Residual Certificate.................................................... 40
Responsible Officer..................................................... 40
RVI Policy.............................................................. 40
Scheduled Payment....................................................... 40
Securities Act.......................................................... 41
Senior Certificate...................................................... 41
Sequential Pay Certificate.............................................. 41
Servicing Account....................................................... 41
Servicing Advances...................................................... 41
Servicing Fee........................................................... 41
Servicing File.......................................................... 41
Servicing Officer....................................................... 42
Servicing Standard...................................................... 42
Servicing Transfer Event................................................ 42
Single Certificate...................................................... 42
Special Servicer........................................................ 43
Special Servicing Fee................................................... 43
Special Servicing Fee Rate.............................................. 43
Specially Serviced Mortgage Loan........................................ 43
Standard & Poor's....................................................... 45
Startup Day............................................................. 45
State and Local Taxes................................................... 45
Stated Maturity Date.................................................... 46
vi
<PAGE>
Stated Principal Balance................................................ 46
Subordinated Certificate................................................ 46
Sub-Servicer............................................................ 46
Sub-Servicing Agreement................................................. 46
Tax Matters Person...................................................... 46
Tax Returns............................................................. 46
Tenant.................................................................. 47
Transfer................................................................ 47
Transferee.............................................................. 47
Transferor.............................................................. 47
Triple Net Lease........................................................ 47
Trust Fund.............................................................. 47
Trustee................................................................. 47
Trustee Fee............................................................. 47
Trustee Fee Rate........................................................ 47
Trustee Liability....................................................... 47
UCC..................................................................... 47
UCC Financing Statement................................................. 48
Uncertificated Accrued Interest......................................... 48
Uncertificated Distributable Interest................................... 48
Uncertificated Principal Balance........................................ 48
Underwriter............................................................. 49
United States Person.................................................... 49
Voting Rights........................................................... 49
Weighted Average Effective REMIC I Remittance Rate...................... 49
Workout Mortgage Loan................................................... 50
Yield Maintenance Charge................................................ 50
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans ................................ 51
SECTION 2.02. Acceptance of the Trust Fund by Trustee ..................... 52
SECTION 2.03. Mortgage Loan Seller's Repurchase of Mortgage Loans
for Document Defects and Breaches of Representations
and Warranties ............................................ 53
SECTION 2.04. Representations and Warranties of Depositor ................. 55
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests ....... 57
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee .................................... 57
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates .............................................. 57
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee ................................... 57
vii
<PAGE>
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates ............................................. 58
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans ....................... 58
SECTION 3.02. Collection of Mortgage Loan Payments ....................... 59
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts; Servicing
Advances and Protective Advances ......................... 61
SECTION 3.04. Certificate Account, Distribution Account and Quarterly
Interest Reserve Account ................................. 64
SECTION 3.05. Permitted Withdrawals from the Certificate Account,
the Distribution Account and the Quarterly Interest
Reserve Account .......................................... 68
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account and the
REO Account .............................................. 72
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage .................................... 73
SECTION 3.08. Enforcement of Alienation Clauses .......................... 76
SECTION 3.09. Realization upon Defaulted Mortgage Loans; Required
Appraisals ............................................... 77
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files .................................................... 80
SECTION 3.11. Servicing Compensation ..................................... 81
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports .............................. 84
SECTION 3.13. Annual Statement as to Compliance .......................... 85
SECTION 3.14. Reports by Independent Public Accountants .................. 86
SECTION 3.15. Access to Certain Information .............................. 86
SECTION 3.16. Title to REO Property; REO Account ......................... 89
SECTION 3.17. Management of REO Property ................................. 90
SECTION 3.18. Sale of Mortgage Loans and REO Properties .................. 93
SECTION 3.19. Additional Obligations of Master Servicer .................. 95
SECTION 3.20. Modifications, Waivers, Amendments and Consents ............ 97
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping ................................. 100
SECTION 3.22. Sub-Servicing Agreements ................................... 101
SECTION 3.23. Representations, Warranties and Covenants of Master
Servicer and Special Servicer ............................ 103
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions .............................................. 107
SECTION 4.02. Statements to Certificateholders; CSSA Loan File Report .... 116
SECTION 4.03. P&I Advances ............................................... 121
viii
<PAGE>
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses ............................................ 124
SECTION 4.05. Calculations ............................................... 125
SECTION 4.06. Use of Agents .............................................. 125
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates ........................................... 126
SECTION 5.02. Registration of Transfer and Exchange of Certificates ...... 127
SECTION 5.03. Book-Entry Certificates .................................... 132
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates .......... 133
SECTION 5.05. Persons Deemed Owners ...................................... 133
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer ................................................. 134
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer ...................... 134
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer ..................................... 135
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer; Assignment of Rights and Obligations ........... 136
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer ........................ 137
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee ................................... 137
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer ..................................... 137
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer .................................... 137
SECTION 6.09. Designation of Special Servicer by the Controlling
Class .................................................... 138
SECTION 6.10. Master Servicer or Special Servicer as Owner of
a Certificate ............................................ 139
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default .......................................... 140
SECTION 7.02. Trustee to Act; Appointment of Successor ................... 143
SECTION 7.03. Notification to Certificateholders ......................... 144
SECTION 7.04. Waiver of Events of Default ................................ 145
SECTION 7.05. Additional Remedies of Trustee upon Event of Default ....... 145
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee .......................................... 146
SECTION 8.02. Certain Matters Affecting Trustee .......................... 147
ix
<PAGE>
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans ........................ 148
SECTION 8.04. Trustee May Own Certificates ............................... 149
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee .................................................. 149
SECTION 8.06. Eligibility Requirements for Trustee ....................... 150
SECTION 8.07. Resignation and Removal of Trustee ......................... 150
SECTION 8.08. Successor Trustee .......................................... 151
SECTION 8.09. Merger or Consolidation of Trustee ......................... 152
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee .............. 152
SECTION 8.11. Appointment of Custodians .................................. 153
SECTION 8.12. Appointment of Authenticating Agents ....................... 154
SECTION 8.13. Appointment of Paying Agent ................................ 155
SECTION 8.14. Appointment of REMIC Administrators ........................ 156
SECTION 8.15. Access to Certain Information .............................. 156
SECTION 8.16. Representations, Warranties and Covenants of Trustee ....... 157
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information .................................... 158
ARTICLE IX TERMINATION
SECTION 9.01. Termination upon Repurchase or Liquidation of All
Mortgage Loans ........................................... 159
SECTION 9.02. Additional Termination Requirements ........................ 165
ARTICLE X ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration ...................................... 166
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment ................................................. 170
SECTION 11.02. Recordation of Agreement; Counterparts .................... 172
SECTION 11.03. Limitation on Rights of Certificateholders ................ 172
SECTION 11.04. Governing Law ............................................. 173
SECTION 11.05. Notices ................................................... 173
SECTION 11.06. Severability of Provisions ................................ 174
SECTION 11.07. Grant of a Security Interest .............................. 174
SECTION 11.08. Successors and Assigns; Beneficiaries ..................... 174
SECTION 11.09. Article and Section Headings .............................. 175
SECTION 11.10. Notices to and from Rating Agencies ....................... 175
SECTION 11.11. Complete Agreement ........................................ 176
x
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Class A-1 Certificate A-1 Section 1.01 Definition of
"Class A-1 Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition of
"Class A-2 Certificate"
Form of Class A-3 Certificate A-3 Section 1.01 Definition of
"Class A-3 Certificate"
Form of Class A-PO Certificate A-4 Section 1.01 Definition of
"Class A-PO Certificate"
Form of Class IO Certificate A-5 Section 1.01 Definition of
"Class IO Certificate"
Form of Class B Certificate A-6 Section 1.01 Definition of
"Class B Certificate"
Form of Class C Certificate A-7 Section 1.01 Definition of
"Class C Certificate"
Form of Class D Certificate A-8 Section 1.01 Definition of
"Class D Certificate"
Form of Class E Certificate A-9 Section 1.01 Definition of
"Class E Certificate"
Form of Class F Certificate A-10 Section 1.01 Definition of
"Class F Certificate"
Form of Class G Certificate A-11 Section 1.01 Definition of
"Class G Certificate"
Form of Class H Certificate A-12 Section 1.01 Definition of
"Class H Certificate"
Form of Class J Certificate A-13 Section 1.01 Definition of
"Class J Certificate"
Form of Class K Certificate A-14 Section 1.01 Definition of
"Class K Certificate"
</TABLE>
xi
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Class R-I Certificate A-15 Section 1.01 Definition of
"Class R-I Certificate"
Form of Class R-II Certificate A-16 Section 1.01 Definition of
"Class R-II Certificate"
Form of Class R-III Certificate A-17 Section 1.01 Definition of
"Class R-III Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of
"Mortgage Loan Schedule"
Form of Schedule of Exceptions to
Mortgage File Delivery C Section 2.02(a)
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)
[RESERVED] E
Form of Transferor Certificate F-1 Section 5.02(b)
Form of Transferee Certificate for QIBs F-2 Section 5.02(b)
Form of Transferee Certificate for Non-QIBs F-3 Section 5.02(b)
Form of Transferee Letter for Transfers of
Subordinated Certificates to Non-Plan Entities G Section 5.02(c)
Form of Transfer Affidavit and Agreement
regarding Class R-I, R-II and R-III Certificates H-1 Section 5.02(d)(i)(B)
</TABLE>
xii
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Transferor Certificate regarding
Class R-I, R-II and R-III Certificates H-2 Section 5.02(d)(i)(D)
Form of Notice and Acknowledgment I-1 Section 6.09
Form of Acknowledgment of Proposed Special Servicer I-2 Section 6.09
[Reserved] J
Form of Schedule of Certificateholders K Section 4.02(a)
Form of certificateholder Confirmation Certificate M Section 3.15
Form of Prospective Purchaser Certificate N Section 3.15
Form of REO Status Report O Section 3.12(b) and 3.12(c)
Form of Delinquent Loan Status Report Q Section 3.12(b) and 3.12(c)
Form of Historical Loan Modification Report R Section 3.12(b) and 3.12(c)
Form of Historical Loss Estimate Report S Section 3.12(b) and 3.12(c)
Form of Public Rating Report T Section 4.02(a)
Form of Lost Note Affidavit and Indemnity U Definition of Mortgage File
Form of Loan Payoff Notification Report V Section 3.12(b) and 3.12(c)
Form of CSSA Loan File Report W Section 4.02(b)
</TABLE>
xiii
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Quarterly Interest Excess Schedule X Definition of Quarterly
Interest Excess
</TABLE>
xiv
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of March 1, 1998, among MERRILL LYNCH MORTGAGE INVESTORS, INC., as
Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer, GMAC
COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the Mortgage Loans and a portion of the interest payments
thereon as well as certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I." The Class R-I Certificates will represent the sole
class of "residual interests" in REMIC I for purposes of the REMIC Provisions
under the federal income tax law. Except as provided below, each REMIC I Regular
Interest will relate to a specific Mortgage Loan. The REMIC I Regular Interests
consist of (1) one REMIC I Discount Regular Interest with respect to each of the
Discount Mortgage Loans with each such REMIC I Discount Regular Interest having
a REMIC I Remittance Rate of 6.75% and an initial Uncertificated Principal
Balance equal to the product of (a) the Cut-off Date Principal Balance of the
related Discount Mortgage Loan and (b) the difference between 1.0 and the Class
A-PO Fraction for such Discount Mortgage Loan, (2) a single REMIC I PO Regular
Interest having a REMIC I Remittance Rate of 0% and an initial Uncertificated
Principal Balance of $1,469,667, and (3) one REMIC I Non-Discount Regular
Interest with respect to each Non-Discount Mortgage Loan with each such REMIC I
Non-Discount Regular Interest having a REMIC I Remittance Rate equal to the
unmodified Net Mortgage Rate as of the Closing Date of the Non-Discount Mortgage
Loan to which such REMIC I Non-Discount Regular Interest relates and an initial
Uncertificated Principal Balance equal to the Cut-Off Date Balance of the
Non-Discount Mortgage Loan to which such REMIC I Non-Discount Regular Interest
relates. None of the REMIC I Regular Interests will be certificated.
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 REMIC II Remittance Rate with respect to each Class of the REMIC II
Regular Interests will be calculated in accordance with the definition of "REMIC
II Remittance Rate". The initial Uncertificated Principal Balance of each Class
of the REMIC II Regular Interests will equal the Original Class Principal
Balance of the corresponding Class of the REMIC III Certificates described
below. None of the REMIC II Regular Interests will be certificated.
<PAGE>
-2-
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. For federal income tax purposes, each Class of the
Regular Certificates (other than the Class IO Certificates) and each of the
Components will be designated as a separate regular interest in REMIC III for
purposes of the REMIC Provisions under federal income tax law.
The following table sets forth the Class designation of the REMIC III
Certificates other than the Class IO and Class R-III Certificates, the
corresponding REMIC II Regular Interests, the corresponding Component and the
Original Class Principal Balance for each Class of the Regular Certificates
other than the Class IO Certificates.
Corresponding
Class of
Class REMIC II Corresponding Original Class
Designation Regular Interests IO Component Principal Balance
- ----------- ----------------- ------------ -----------------
Class A-1 N IO-A1 $132,820,333
Class A-2 O IO-A2 $ 82,098,000
Class A-3 P IO-A3 $235,868,000
Class A-PO Q Not Applicable $ 1,469,667
Class B R IO-B $ 38,765,000
Class C S IO-C $ 32,304,000
Class D T IO-D $ 38,765,000
Class E U IO-E $ 9,691,000
Class F V IO-F $ 58,147,000
Class G W IO-G $ 3,230,000
Class H X IO-H $ 4,846,000
Class J Y IO-J $ 1,615,000
Class K Z IO-K $ 6,461,530
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer and the Trustee agree as follows:
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.
<PAGE>
-3-
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates (other than the Class IO Certificates and Class A-PO 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 outstanding immediately prior to such Distribution Date and with respect
to the Class IO Certificates for any Distribution Date, the sum of the Accrued
Component Interest for each of its Components for such Distribution Date.
Accrued Certificate Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
"Accrued Component Interest": With respect to each Component for any
Distribution Date, the sum of one month's interest at the Pass-Through Rate
applicable to such Component for such Distribution Date, accrued on the
Component Notional Amount of such Component outstanding immediately prior to
such Distribution Date. Accrued Component Interest shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Right": With respect to any Double Net Lease or Triple Net
Lease, any termination or abatement rights of the related Tenant arising from a
Mortgagor's default under such Double Net Lease or Triple Net Lease in
performing certain obligations including, without limitation environmental
remediation not caused by the related Tenant, enforcement of restrictive
covenants affecting other property owned by the Mortgagor, compliance with laws
affecting the related Mortgaged Property or common areas relating to such
Mortgaged Property.
"Additional Trust Fund Expense": Any Special Servicing Fees, Recovery Fees
and, in accordance with Sections 3.03(e) and 4.03(d), interest payable to the
Master Servicer, the Special Servicer and the Trustee 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 Section 4.04 no such expense
shall be deemed to have been incurred by the Trust Fund until such time as the
payment thereof is actually made from the Certificate Account or the
Distribution Account, as the case may be.
"Advance": Any P&I Advance, Servicing Advance, or Protective Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
<PAGE>
-4-
"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": With respect to any Mortgage Loan, an Independent appraisal of
the related Mortgaged Property conducted in accordance with the standards of the
Appraisal Institute by an Independent Appraiser.
"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; provided, that if the related Required
Appraisal Mortgage Loan becomes a Corrected Mortgage Loan, then the Appraisal
Reduction Amount shall be deemed to be zero, subject to such Mortgage Loan again
becoming a Required Appraisal Mortgage Loan, and provided further, that with
respect to any Mortgage Loan that becomes a Required Appraisal Mortgage Loan
pursuant to clause (iii) of the definition thereof, the Appraisal Reduction
Amount shall be deemed to exist, notwithstanding such Required Appraisal
Mortgage Loan becoming a Corrected Mortgage Loan, for so long as the terms of
the modification effected pursuant to Section 3.20 are in effect.
"Appraised Value": With respect to each Mortgaged Property, the appraised
value thereof taking into consideration the related Credit Lease if such related
Credit Lease is in effect and based upon the most recent appraisal or update
thereof that is contained in the related Servicing File; provided, however, that
appraisals obtained for the purpose of determining the recoverability of
Protective Advances shall not take into consideration the existence of the
related Credit Lease.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits (including the Tenant Lease and any
Guaranty or letter
<PAGE>
-5-
of credit) or similar document or instrument executed by the Mortgagor in
connection with the origination of the related Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage Loan
following its 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 or the
Trustee for distribution on the Certificates on such Distribution Date pursuant
to Section 4.03, (iii) the aggregate amount transferred from the REO Account (if
established) to the Certificate Account during the month of such Distribution
Date, on or prior to the P&I Advance Date in such month, pursuant to Section
3.16(c), (iv) the aggregate amount deposited by the Master Servicer in the
Distribution Account for such Distribution Date pursuant to Section 3.19 in
connection with Prepayment Interest Shortfalls, (v) the aggregate amount
deposited by the Master Servicer in the Distribution Account for such
Distribution Date pursuant to Section 3.05(c) with respect to each Quarterly Pay
Loan, 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 Periodic 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)-(xiv) of
Section 3.05(a) or (B) the Distribution Account pursuant to clauses (ii) -
(viii) of Section 3.05(b), (iii) Prepayment Premiums and (iv) any amounts
deposited in the Certificate Account or the Distribution Account in error.
<PAGE>
-6-
"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, Minneapolis, Minnesota or the city
in which the Corporate Trust Office of the Trustee or the Primary Servicing
Office of the Master Servicer or the Special Servicer is located, are authorized
or obligated by law or executive order to remain closed.
"Capitalized Interest Payment": With respect to certain Construction Loans,
the aggregate amount paid by the related Mortgagor that is sufficient to pay all
interest due on such Construction Loan until the related Tenant is obligated to
begin making payments under the related Credit Lease.
"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 1998-C1-CTL, 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 "GMAC
Commercial Mortgage Corporation, as Master Servicer for Norwest Bank Minnesota,
National Association, as Trustee, on behalf of and in trust for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL."
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then current
Class Principal Balance of such Class of Sequential Pay Certificates, as the
case may be, and the denominator of which is the related Original Class
Principal Balance.
<PAGE>
-7-
"Certificate Notional Amount": The sum of the Component Notional Amounts
with respect to each of the Components.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is registered
in the Certificate Register, except that (i) neither a Disqualified Organization
nor a Non-United States Person shall be Holder of a Residual Certificate for any
purpose hereof and, (ii) solely for the purposes of giving any consent, approval
or waiver pursuant to this Agreement that relates to any of the Depositor, the
Mortgage Loan 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
required or permitted to be made by the Majority Subordinate Certificateholder),
any Certificate registered in the name of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, or the Trustee, as the case
may be, or any Certificate registered in the name of any of its Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. 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-PO Certificate": Any one of the Certificates with a "Class A-PO"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
<PAGE>
-8-
"Class A-PO Fraction": With respect to each Discount Mortgage Loan, a
fraction, the numerator of which is 6.75% minus the unmodified Net Mortgage Rate
for such Discount Mortgage Loan as of the Cut-Off Date and the denominator of
which is 6.75%.
"Class A-PO Principal Distribution Amount": With respect to each
Distribution Date that the Class A-PO Certificates are outstanding, an amount
equal to the sum of (a) with respect to each outstanding Discount Mortgage Loan,
the product of (x) the portion of the Principal Distribution Amount allocable in
respect of such Discount Mortgage Loan and (y) the related Class A-PO Fraction
and (b) with respect to each outstanding Discount Mortgage Loan, the product of
(x) an amount equal to any Realized Losses that were realized during the related
Collection Period with respect to such Discount Mortgage Loan (to the extent
such Realized Losses were not allocated to the Class A-PO Certificates) and (y)
the related Class A-PO Fraction.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class 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 portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a portion of 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-9
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
<PAGE>
-9-
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H" designation
on the face thereof, substantially in the form of Exhibit A-12 attached hereto,
and evidencing a portion of a "regular interest" in REMIC III for purposes of
the REMIC Provisions.
"Class IO Certificate": Any one of the Certificates with a "Class IO"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the aggregate of the Components,
each of which shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class J Certificate": Any of the Certificates with a "Class J" designation
on the face thereof, substantially in the form of Exhibit A-13 attached hereto,
and evidencing a portion of a "regular interest" in REMIC III for purposes of
the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K" designation
on the face thereof, substantially in the form of Exhibit A-14 attached hereto,
and evidencing a portion of a "regular interest" in REMIC III for purposes of
the REMIC Provisions.
"Class Prepayment Percentage": With respect to any Distribution Date and
any Class of the Sequential Pay Certificates, the percentage obtained by
dividing the portion, if any, of the Principal Distribution Amount distributed
to the respective Class of Sequential Pay Certificates on such Distribution
Date, by the total Principal Distribution Amount distributed to all Classes of
Sequential Pay Certificates on such Distribution Date.
"Class Principal Balance": As of the Closing Date, the Class Principal
Balance of each Class of Sequential Pay Certificates shall equal the Original
Class Principal Balance thereof. On each Distribution Date, the Class Principal
Balance of each such Class of Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced by the amount
of any Realized Losses and Additional Trust Fund Expenses allocated thereto on
such Distribution Date pursuant to Section 4.04(a). Distributions in respect of
a reimbursement of Realized Losses and Additional Trust Fund Expenses previously
allocated to a Class of Sequential Pay Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
"Class R-I Certificate": Any one of the Certificates with a "Class R-I"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
<PAGE>
-10-
"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-16
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-17
attached hereto, and evidencing the sole class of "residual interests" in REMIC
III for purposes of the REMIC Provisions.
"Closing Date": March 31, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the period
commencing on the day immediately following the Determination Date for the
preceding Distribution Date (or, in the case of the initial Distribution Date,
commencing immediately following the Cut-Off Date) and ending on and including
the related Determination Date.
"Component": Each of the twelve Components and collectively, the
"Components," each evidencing a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions and corresponding to a Class of Sequential Pay
Certificates (other than the Class A-PO Certificates).
"Component Notional Amount": With respect to each Component and any
Distribution Date, an amount equal to the Class Principal Balance of its
corresponding Class of Sequential Pay Certificates (other than the Class A-PO
Certificates) as of such Distribution Date.
"Construction Loan": Each Mortgage Loan identified as a Construction Loan
on the Mortgage Loan Schedule.
"Construction Loan Default Date": With respect to each Construction Loan,
the date by which construction is to be completed as specified in the related
Credit Lease.
"Construction Reserves": With respect to any Construction Loan, any amounts
delivered to the Master Servicer as Reserve Funds that are required to be
remitted to Persons under the related Mortgage Loan documents for work completed
on the related Mortgaged Property and upon the satisfaction of the requirements
specified therein.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates outstanding (a) which bears the latest alphabetical
Class designation and (b) the Class Principal Balance of which is greater than
20% of the Original Class Principal Balance thereof; provided, however, that if
no such Class of Certificates has a Class Principal Balance greater than 20% of
its Original Class Balance, the Controlling Class shall be the Class of
Sequential Pay Certificates bearing the latest alphabetical Class designation.
With
<PAGE>
-11-
respect to determining the Controlling Class, the Class A-1, Class A-2, Class
A-3 and Class A-PO Certificates shall be deemed a single Class of Certificates.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attn: Corporate Trust Services (CMBS) - Merrill Lynch
Series 1998-C1-CTL.
"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".
"Credit Lease": The lease agreement between the Mortgagor as lessor and the
Tenant as lessee of the related Mortgaged Property.
"CSSA Loan File Report": The monthly report in the "CSSA loan file" format
substantially containing the information required therein for the Mortgage
Loans, a form of which is attached hereto as Exhibit W.
"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, the Mortgage Loan Seller or an Affiliate of the
Depositor or the Mortgage Loan Seller. If no such custodian has been appointed
or if such custodian has been so appointed, but the Trustee shall have
terminated such appointment, then the Trustee shall be the Custodian.
"Cut-Off Date": March 1, 1998 or for each Mortgage Loan with a Due Date
after the first day of each month, the date of such Due Date in March 1998.
"Cut-Off Date Balance": With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the Cut-Off Date, after
application of all unscheduled payments of principal received on or before such
date and the principal component of all Scheduled Payments due on or before such
date, whether or not received.
"DCR": Duff & Phelps Credit Rating Co. or its successor in interest. If
neither such rating organization nor any successor remains in existence, "DCR"
shall be deemed to refer to such other nationally recognized statistical rating
organization or other comparable Person designated by the Depositor, written
notice of which designation shall be given to the Trustee, the Master Servicer
and the Special Servicer, and specific ratings of DCR herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Deemed Due Date": With respect to each Quarterly Pay Loan, the day of the
month on which the quarterly Due Date occurs, which day of the month shall be
deemed to be the due date for each other calendar month.
<PAGE>
-12-
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent in an
amount equal to at least two Periodic Payments or 60 days if such Mortgage Loan
is a Quarterly Pay Loan (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 Special Servicer has, by written notice to the related Mortgagor,
accelerated the maturity of the indebtedness evidenced by the related Mortgage
Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the United
States Treasury obligations required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan on the
Mortgage Loan Schedule which permits the related Mortgagor to pledge Defeasance
Collateral to the holder of such Mortgage Loan in lieu of prepayment.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit Q attached hereto setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but Specially Serviced Mortgage Loans, or were in foreclosure but were
not REO Property.
"Depositor": Merrill Lynch Mortgage Investors, Inc. or its successor in
interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named as contemplated by Section 5.03(c). The nominee of the initial
Depository, for purposes of registering those Certificates that are to be
Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the tenth day
of the month in which such Distribution Date occurs, or if such tenth day is not
a Business Day, the next Business Day.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO
<PAGE>
-13-
Property primarily for sale or lease, the performance of any construction work
thereon or any use of such REO Property in a trade or business conducted by
REMIC I other than through an Independent Contractor; provided, however, that
the Special Servicer or any Sub-Servicer on behalf of the Trust Fund shall not
be considered to Directly Operate an REO Property solely because the Special
Servicer or any Sub-Servicer establishes rental terms, chooses tenants, enters
into or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
"Discount Mortgage Loan": Each Mortgage Loan having a Net Mortgage Rate
less than 6.75%.
"Disqualified Organization": Any of the following: (i) the United States or
a possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of a Residual Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of Regular
Certificates for any Distribution Date, the Accrued Certificate Interest in
respect of such Class of Regular Certificates (other than the Class A-PO
Certificates), for such Distribution Date, reduced (to not less than zero) by
the product of (i) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (ii) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "Norwest Bank Minnesota, National Association,
as Trustee, in trust for the registered holders of Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1998-C1-CTL."
<PAGE>
-14-
"Distribution Date": The later of (a) 15th day of any month, or if such
15th day is not a Business Day, the Business Day immediately following and (b)
the fourth Business Day following the related Determination Date, commencing on
April 16, 1998.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Double Net Lease": Each Credit Lease identified as a Double Net Lease on
the Mortgage Loan Schedule.
"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 Periodic 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 Periodic 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 Periodic
Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company (including the Trustee),
and (a) with respect to deposits held for 30 days or more in such account, the
long-term deposit or unsecured debt obligations of which are rated "A+" by DCR
(if then rated by DCR or, if not rated by DCR, then otherwise approved by DCR),
"AA-" by Standard & Poor's, and "A2" by Moody's (if then rated by Moody's) or,
in each such case, such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies, at any time such funds are on
deposit therein, or (b) with respect to deposits held for less than 30 days in
such account, the short-term deposits of which are rated D1+ by DCR (if then
rated by DCR or, if not rated by DCR, then otherwise approved by DCR), P-1 by
Moody's (if then rated by Moody's) and A-1 by Standard & Poor's or, in each such
case, such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies at any time such funds are on deposit therein,
(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 (iii) such other accounts as
would not, as confirmed in writing by each Rating Agency, cause a qualification,
downgrade or withdrawal of the then-current ratings assigned to any Class of the
Certificates.
"Encumbered Mortgage Loan": Each Mortgage Loan for which (i) the Master
Servicer has made one or more Protective Advances, (ii) the Master Servicer has
not been reimbursed for the Protective Advances at the time such Mortgage Loan
is paid in full and (iii)
<PAGE>
-15-
the terms of the related Mortgage Loan documents grant a lien on the related
Mortgage Property to secure the repayment of the Protective Advance.
"Environmental Assessment": A "Phase I assessment" as described in, and
meeting the criteria of, (a) the Servicing Standard, in the case of any other
Specially Serviced Mortgage Loans, and (b) the American Society for Testing and
Materials.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other items for which an escrow 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": The Securities Exchange Act of 1934.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Mortgage Loan or REO Property (other than a
Mortgage Loan or REO Property, as the case may be, that was purchased by the
Mortgage Loan Seller pursuant to the 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, the Special Servicer 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.
"Fleet Letter of Credit": With respect to Construction Loan (control number
53), the letter of credit relating to such Construction Loan issued by Fleet
National Bank.
"FNMA": Federal National Mortgage Association or any successor.
"Guarantor": With respect to any Tenant, any affiliate thereof that
guaranties payment by such Tenant under the related Credit Lease.
"Guaranty": With respect to any Credit Lease, any guaranty issued by a
Guarantor that guaranties payment of amounts owed by related Tenant under such
Credit Lease.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to
<PAGE>
-16-
CERCLA or any other federal, state or local environmental related laws and
regulations now existing or hereafter enacted, and specifically including,
without limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products and urea
formaldehyde.
"Historical Loan Modification Report": A report substantially containing
the content described in Exhibit Q attached hereto setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, have
been modified pursuant to this Agreement (i) during the related Collection
Period and (ii) since the Cut-Off Date, showing the original and the revised
terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
content described in Exhibit R attached hereto setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of Housing
and Urban Development pursuant to Section 207 of the National Housing Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the 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, who is, if the
State in which the subject Mortgaged Property is located certifies or licenses
appraisers, certified or licensed in such State, and who has a minimum of five
years experience in the subject property type and market.
<PAGE>
-17-
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee), so long as REMIC I does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I is at
arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Initial Quarterly Interest Reserve Deposit": With respect to each
Quarterly Pay Loan that does not have a Due Date occurring in April 1998, an
amount equal to the amount of interest to accrue on such Quarterly Pay Loan at
the related Mortgage Rate from the Cut-Off Date through and including the day of
the month that is one month prior to the first Due Date for such Quarterly Pay
Loan to occur after the Closing Date.
"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 (a) the restoration of the related
Mortgaged Property, (b) 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, (c) any partial or full
prepayment of the Mortgage Loan as a result of a payment under a Lease
Enhancement Policy or (d) any payment on a Mortgage Loan pursuant to a RVI
Policy.
"Insured Balloon Loan": Each Balloon Loan that is insured by an RVI Policy
and identified as an Insured Balloon Loan on the Mortgage Loan Schedule.
"Insured Event": With respect to the Lease Enhancement Policy and RVI
Policy, any occurrence, condition or event that gives rise or with the passage
of time will give rise to a claim under the Lease Enhancement Policy or RVI
Policy, as the case may be.
"Interested Person": The Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Trustee, any Holder of a Certificate, or any
Affiliate of any such Person.
<PAGE>
-18-
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the applicable provisions of the Code and Treasury
Regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts received
thereon during any Collection Period, other than late payment fees or default
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.
"Lease Enhancement Policy": With respect to certain Mortgage Loans, any
non-cancelable credit lease enhancement insurance policy that insures against
certain losses arising out of casualty and/or condemnation of the related
Mortgaged Property.
"Lease Enhancement Policy Issuer": With respect to any Lease Enhancement
Policy, Chubb Custom Insurance Company together with any assignee, successor or
subsequent insurer thereunder.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller pursuant to the 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, the Special Servicer or the Master Servicer pursuant to Section 9.01.
With respect to any REO Property (and the related REO Loan), any of the
following events: (i) a Final Recovery Determination is made with respect to
such REO Property; or (ii) such REO Property is purchased by the Depositor, the
Special Servicer or the Master Servicer pursuant to Section 9.01.
"Liquidation 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
<PAGE>
-19-
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
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement; or
(vi) the purchase of a Mortgage Loan or REO Property by the Depositor, the
Special Servicer or the Master Servicer pursuant to Section 9.01.
"Loan Payoff Notification Report": A report substantially containing the
content described in Exhibit U attached hereto setting forth, among other
things, for each Mortgage Loan where written notice of anticipated payoff has
been received as of the Determination Date immediately preceding the preparation
of such report the control number, the property name; if known, the amount of
principal expected to be paid, the expected date of payment and the estimated
amount of Yield Maintenance Charge or Percentage Premium due.
"Maintenance Right" With respect to any Double Net Lease any termination
and abatement rights of the related Tenant arising from a Mortgagor's default
under such Double Net Lease in performing obligations with respect to performing
required maintenance, repairs and replacements with respect to 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 Sequential Pay 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, Class A-3 and Class
A-PO Certificates shall be deemed to be a single Class of Certificates, with
such Voting Rights allocated among the Holders of Certificates of such Classes
in proportion to the respective Certificate Principal Balances of such
Certificates.
"Master Servicer": GMAC Commercial Mortgage Corporation, its successor in
interest, or any successor master servicer appointed as herein provided.
"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, 0.04% per
annum.
"Merrill Lynch": Merrill Lynch, Pierce, Fenner & Smith Incorporated or its
successor in interest.
"Monthly Payment": With respect to any Mortgage Loan that is not a
Quarterly Pay 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
<PAGE>
-20-
related Mortgagor or by reason of a modification, waiver or amendment granted or
agreed to by the Special Servicer pursuant to Section 3.20).
"Moody's": Moody's Investors Service, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given in writing to the Trustee, the Master Servicer and
the Special Servicer, and specific ratings of Moody's Investors Service, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of trust,
deed to secure debt or similar instrument that secures the Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note, (or with respect to Mortgage
Loans control numbers 101 and 107, a lost note affidavit and
indemnity (a form of which is attached hereto as Exhibit U) with
a copy of such Mortgage Note attached thereto) endorsed (without
recourse, representation or warranty, express or implied) to the
order of Norwest Bank Minnesota, National Association, as trustee
for the registered holders of Merrill Lynch Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1998-C1-CTL;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof, in each case with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and of any
intervening assignment thereof, in each case with evidence of
recording indicated thereon;
(iv) (a) an original executed assignment of the Mortgage in recordable
form, (b) any related Assignment of Leases (if such item is a
document separate from the Mortgage) in recordable form and (c)
any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of Norwest Bank
Minnesota, National Association as trustee for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL, in recordable
form;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of Norwest Bank Minnesota, National
<PAGE>
-21-
Association, as trustee for the registered holders of Merrill
Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL;
(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 related
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 related
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 Norwest Bank Minnesota,
National Association, as trustee for the registered holders of
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL in recordable form;
(ix) an original or copy of each Credit Lease, Lease Enhancement
Policy, RVI Policy and any Guaranty; and
(x) with respect to Mortgage Loan (control number 53), the Fleet
Letter of Credit.
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 clauses
(vi) and (x) of this definition, shall be deemed to include only such documents
to the extent a Responsible Officer of the Trustee or Custodian has actual
knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage and other security
documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated as of March 1, 1998, between the Depositor and the Mortgage Loan Seller
and relating to the transfer of the Mortgage Loans to the Depositor.
<PAGE>
-22-
"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 Periodic 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 and whether such Balloon Loan is an Insured
Balloon Loan;
(viii) whether the Mortgage Loan is secured by a Mortgage on a leasehold
interest;
(ix) the Master Servicing Fee Rate;
(x) the amount of any Initial Quarterly Interest Reserve Deposit for
such Mortgage Loan;
(xi) the name of the Tenant or Guarantor, if any;
(xii) whether such Mortgage Loan is a Defeasance Loan;
(xiii) whether the Credit Lease is a Double Net Lease or Triple Net
Lease;
(xiv) whether such Mortgage Loan is a Construction Loan and if so the
Construction Loan Default Date;
(xv) the amounts of any Escrow Funds and Reserve Funds (other than
Capitalized Interest Payments and Construction Reserves) for such
Mortgage Loan; and
(xvi) if such Mortgage Loan is a Construction Loan, the amounts of
remaining Capitalized Interest Payments if any.
"Mortgage Loan Seller": Daiwa Finance Corp. or its successor in interest.
<PAGE>
-23-
"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any successor
REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the fixed annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law; (ii) any
Mortgage Loan after its Stated Maturity Date, the annualized rate described in
clause (i) above determined without regard to the passage of such Maturity Date
but giving effect to any modification thereof as contemplated by Section 3.20;
and (iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account or the
REO Account (if any) for any Collection Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Collection
Period on funds held in such account, exceeds the aggregate of all losses of
principal, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account or the REO
Account (if any) for any Collection Period, the amount by which the aggregate of
all losses of principal, if any, incurred during such Collection Period in
connection with the investment of funds held in such account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate minus the sum of the Trustee Fee Rate and the applicable Master 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
<PAGE>
-24-
Servicer pursuant to Section 3.20, the Net Mortgage Rate for such Mortgage Loan
or REO Loan shall be calculated without regard to such event; and provided
further, that if interest in respect of such Mortgage Loan or REO Loan is not
accrued on the basis of a 360-day year consisting of twelve 30-day months, then,
solely for purposes of determining the related REMIC I Remittance Rate and
thereby calculating the Weighted Average Effective REMIC I Remittance Rate, the
REMIC II Remittance Rate and the Pass-Through Rate for each of the Components
for any Distribution Date, such Net Mortgage Rate will, to the extent
appropriate, be adjusted from accrual period to accrual period to compensate for
such difference.
"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.
"Non-Discount Mortgage Loan": Each Mortgage Loan having a Net Mortgage Rate
equal to or greater than 6.75%.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance, Nonrecoverable
Servicing Advance or Nonrecoverable Protective Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or proposed
to be made in respect of any Mortgage Loan or REO Loan by the Master Servicer or
Trustee as the case may be, that, as determined by the Master Servicer or the
Trustee as the case may be in accordance with the Servicing Standard with
respect to such P&I Advance, 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 Protective Advance": Any Protective Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Loan by the Master
Servicer or Trustee as the case may be, that, as determined by the Master
Servicer or the Trustee 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.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Loan by the Master
Servicer, the Special Servicer or Trustee as the case may be, that, as
determined by the Master Servicer, the Special Servicer or the Trustee 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 J, Class K, Class R-I,
Class R-II or Class R-III Certificate.
"Non-United States Person": Any Person other than a United States Person.
<PAGE>
-25-
"Officers' Certificate": A certificate signed by a Servicing Officer of the
Master Servicer or the Special Servicer, as the case may be, or by a Responsible
Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable to and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of REMIC I, REMIC II or
REMIC III as a REMIC or (b) compliance with the REMIC Provisions, must be an
opinion of counsel who is in fact Independent of the Depositor, the Master
Servicer and the Special Servicer.
"Original Component Notional Amount": With respect to each Component, the
initial Component Notional Amount thereof as of the Closing Date equal to the
Original Class Principal Balance of the corresponding Class of Sequential Pay
Certificates (other than the Class A-PO Certificates) as of the Closing Date.
"Original Class Principal Balance": With respect to any Class of Sequential
Pay Certificates, the initial Class Principal Balance thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": For any Distribution Date, with respect to:
(i) the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D
and Class E Certificates, 6.31%, 6.48%, 6.72%, 6.75%, 6.75%,
6.75% and 6.75%, respectively;
(ii) each of the Class F, G, H, J and K Certificates, 6.25%;
(iii) Components IO-A1, IO-A2, IO-A3, IO-B, IO-C, IO-D and IO-E, the
REMIC II Remittance Rate for such Distribution Date minus
6.31%, 6.48%, 6.72%, 6.75%, 6.75%, 6.75% and 6.75%,
respectively; and
(iv) Component IO-F, IO-G, IO-H, IO-J and IO-K, the REMIC II
Remittance Rate for such Distribution Date minus 6.25%.
"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.
"Percentage Interest": With respect to any Sequential Pay Certificate, a
percentage, the numerator of which is the initial Certificate Principal Balance
of such Certificate as of the
<PAGE>
-26-
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance of the relevant Class. With respect to any
Class IO Certificate, a percentage, the numerator of which is the initial
Certificate Notional Amount of such Certificate as of the Closing Date, as
specified on the face thereof, and the denominator of which is the aggregate
Original Class Principal Balances of the Sequential Pay Certificates (other than
the Class A-PO Certificates). With respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Percentage Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
"Periodic Payment": With respect to each Quarterly Pay Loan, the related
Quarterly Payment and with respect to each other Mortgage Loan, the related
Monthly Payment.
"Permitted Investments": Any one or more of the following obligations or
securities having maturities of 365 days or less (including obligations or
securities of the Trustee if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided such
obligations are backed by the full faith and credit of the
United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. If rated,
such an obligation should not have an "r" highlighter affixed
to its rating by Standard & Poor's. Interest may either be
fixed or variable. Interest should be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index. Such investments should not be
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
DCR, if rated by DCR, Moody's and Standard & Poor's or such
lower rating as will not result in qualification, downgrading
or withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies. In addition,
any such item should not have an "r" highlighter affixed to its
rating by Standard & Poor's, and its terms should have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable, and should be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index. Such investments should not be relied upon for
a fixed yield;
<PAGE>
-27-
(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 DCR, if rated by DCR, Moody's and Standard
& Poor's or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the
Rating Agencies. In addition, any such item should not have an
"r" highlighter affixed to its rating by Standard & Poor's, and
its terms should have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest
may either be fixed or variable, and should be tied to a single
interest rate index plus a single fixed spread (if any), and
move proportionately with that index. Such investments should
not be 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 DCR, if rated by DCR,
Moody's and Standard & Poor's or such lower rating as will not
result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. The commercial paper should not
have an "r" highlighter affixed to its rating by Standard &
Poor's and by its terms should have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. Interest
should be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that
index. Such investments should not be relied upon for a fixed
yield;
(v) units of money market funds rated in the highest rating
category of DCR, if rated by DCR, (if not rated by DCR, then
otherwise approved by DCR) and Moody's and AAAm or AAAm-G by
Standard & Poor's (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the
Rating Agencies) and which seek to maintain a constant net
asset value;
(vi) any other 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;
<PAGE>
-28-
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) that no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate other than
a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of the FNMA Multifamily Guide, as amended
from time to time.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of REMIC I,
REMIC II or REMIC III, the Holder of Certificates with the largest Percentage
Interest of the related Class of Residual Certificates.
"Policy Termination Event": With respect to any Lease Enhancement Policy
and RVI Policy, any abatement, rescission, cancellation, termination, contest,
legal process, arbitration or disavowal of liability thereof.
"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 and Master Servicing Fee) accrued on the amount
of such Principal Prepayment during the period from and after such Due Date, to
the extent collected (exclusive of any Prepayment Premium collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan prior to
such Mortgage Loan's Due Date in such
<PAGE>
-29-
Collection Period, the amount of interest, to the extent not collected from the
related Mortgagor (without regard to any Prepayment Premium that may have been
collected), that would have accrued at a rate per annum equal to the sum of (i)
the Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any Yield Maintenance Charge or Percentage Premium
paid or payable, as the context requires, by a Mortgagor in connection with a
Principal Prepayment.
"Primary Servicing Office": The offices of the Master Servicer or the
Special Servicer, as the context may require, that are primarily responsible for
such party's servicing obligations hereunder. As of the Closing Date, the
Primary Servicing Office of each of the Master Servicer and the Special Servicer
is located at 650 Dresher Road, Horsham, Pennsylvania 19044-8015, 100 South
Wacker Drive, Suite 400, Chicago, Illinois 60606, and 550 California Street,
14th Floor, San Francisco, California 94104.
"Prime Rate": The "prime rate" published in the "Money Rates" section of
The Wall Street Journal, as such "prime rate" may change from time to time. If
The Wall Street Journal ceases to publish the "prime rate," then the Master
Servicer shall select an equivalent publication that publishes such "prime
rate"; and if such "prime rate" is no longer generally published or is limited,
regulated or administered by a governmental or quasi-governmental body, then the
Master Servicer shall select a comparable interest rate index. In either case,
such selection shall be made by the Master Servicer in its sole discretion and
the Master Servicer shall notify the Trustee and the Special Servicer in writing
of its selection.
"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Scheduled Payments
(other than Balloon Payments) and the principal portion of 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
<PAGE>
-30-
due, in respect of such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(d) the aggregate of all Liquidation Proceeds, Insurance Proceeds,
condemnation awards and proceeds of Mortgage Loan repurchases 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 the related REO Loans, in each case
net of any portion of such amounts that represents a recovery of the
principal portion of any Scheduled Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Scheduled Payment deemed
due, in respect of the related REO Loan or the predecessor Mortgage Loan on
a Due Date during or prior to the related Collection Period and not
previously recovered; and
(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.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date; and
provided that it shall not include a payment of principal that is accompanied by
an amount of interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment.
"Prospectus": The prospectus dated February 25, 1998, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The prospectus supplement dated March 25, 1998
relating to the Registered Certificates.
<PAGE>
-31-
"Protective Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by or on behalf of the Master Servicer or
the Trustee (to the extent not reimbursed by the Master Servicer) pursuant to
Section 3.03(d), to the extent that the related Reserve Funds or excess cash
flow after scheduled debt service on the related Mortgage Loan are insufficient,
and the payment of which is necessary to avoid a Tenant exercising a Maintenance
Right or Additional Right, under a Double Net Lease or Triple Net Lease.
"Protective Advance Rate": The Reimbursement Rate plus 2.0%.
"Public Rating Report": The report setting forth the information set forth
on Exhibit T.
"Purchase Price": With respect to any Mortgage Loan to be purchased by the
Mortgage Loan Seller pursuant to the 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, the Special Servicer 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 principal balance of such Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase plus any accrued interest on P&I Advances, (b) all related and
unreimbursed Servicing Advances and Protective Advances plus any accrued
interest thereon, (c) any reasonable costs and expenses incurred by the Trust
Fund in connection with any such purchase by the Mortgage Loan Seller and (d)
any other Additional Trust Fund Expenses in respect of such Mortgage Loan
(except that Additional Trust Fund Expenses in respect of such Mortgage Loan
allocable to any Class of Certificates owned by the Majority Subordinate
Certificateholder shall not be included in the Purchase Price with respect to a
purchase made by the Majority Subordinate Certificateholder pursuant to Section
3.18(b)); 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.
"Quarterly Interest Reserve Account": The segregated account created and
maintained by the Master Servicer pursuant to Section 3.04(c) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "GMAC
Commercial Mortgage Corporation," as Master Servicer for Norwest Bank Minnesota,
National Association, as Trustee, on behalf of and in trust for the registered
holders of Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL."
"Quarterly Pay Interest Deposit": With respect to each Quarterly Pay Loan
and P&I Advance Date, an amount equal to one month's interest deemed to accrue
at the related Mortgage Rate on the outstanding principal balance thereof as of
the second preceding Deemed Due Date through the immediately preceding Deemed
Due Date for such Quarterly Pay Loan.
<PAGE>
-32-
"Quarterly Pay Loan": Each Mortgage Loan that receives scheduled quarterly
payments of principal and/or interest pursuant to the terms of the related
Mortgage Note and is identified as a Quarterly Pay Loan on the Mortgage Loan
Schedule.
"Quarterly Pay Loan Interest Excess": With respect to each Quarterly Pay
Loan and each P&I Advance Date to occur immediately following a Due Date for
such Quarterly Pay Loan, (A) provided that that Master Servicer has received on
a timely basis all principal and interest due on such Quarterly Pay Loan for the
related Due Date and each prior Due Date, the amount of the Quarterly Interest
Excess specified on Exhibit X for such Quarterly Pay Loan and such P&I Advance
Date and (B) in the event the Master Servicer has not received on a timely basis
all principal and interest due on such Quarterly Pay Loan for the related Due
Date or any prior Due Date, the excess, if any of (i) the aggregate amount
collected in respect of interest on such Quarterly Pay Loan for such Due Date
over (ii) the sum of (a) the Trustee Fee, the Master Servicing Fee and the
Special Servicing Fee allocable to such Quarterly Pay Loan for the related
Collection Period and for the next two Collection Periods and (b) the Quarterly
Pay Interest Deposit for such Quarterly Pay Loan on such P&I Advance Date and
the Quarterly Interest Deposits for such Quarterly Pay Loan due on the next two
P&I Advance Dates. With respect to each Quarterly Pay Loan and each P&I Advance
Date to occur immediately following a Due Date on which all principal and
interest on such Quarterly Pay Loan is paid in full, all amounts remaining in
the Quarterly Interest Reserve Account in respect of such Quarterly Pay Loan.
"Quarterly Payment": With respect to any Mortgage Loan that is a Quarterly
Pay Loan, as of any Due Date, the scheduled quarterly 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).
"Rated Final Distribution Date": Solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii) and with respect to (i) each REMIC I
Regular Interest, (ii) each REMIC II Regular Interest, (iii) each Class of
Regular Certificates (other than the Class IO Certificates) and (iv) each
Component, November 15, 2026.
"Rating Agency": Each of DCR, Moody's 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
<PAGE>
-33-
Period in which the Final Recovery Determination was made, plus (c) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Loan, as the case may be, during the Collection Period in which such Final
Recovery Determination was made; (2) each Defaulted Mortgage Loan as to which
any portion of the principal or previously accrued interest payable thereunder
was canceled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20, the
amount of such principal or interest 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 Periodic Payment due thereon. Each such Realized Loss determined
pursuant to clause (3) above shall be deemed to have been incurred on the Due
Date for each affected Periodic 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.
"Recovery Fee": With respect to each Specially Serviced Mortgage Loan,
Workout Mortgage Loan and REO Loan, the fee payable to the Special Servicer out
of certain related principal recoveries pursuant to the second paragraph of
Section 3.11(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3, Class A-PO,
Class B, Class C, Class D, Class E and Class IO Certificates.
"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(e) 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 with respect to
which a separate REMIC election is to be made and, consisting of: (i) the
Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received (excluding (X)
payments of principal and interest due, and principal prepayments received, on
or before the Cut-Off Date, (Y) any interest payable on the Mortgage Loans which
is attributable to any portion of a Servicing Fee that is deemed to be in excess
of the amount which constitutes reasonable servicing compensation within the
meaning of the REMIC Provisions, and (Z) the
<PAGE>
-34-
Reserve Funds in the Reserve Accounts), together with all documents included in
the related Mortgage Files and any Escrow Payments; (ii) any REO Property
acquired in respect of a Mortgage Loan; (iii) such funds or assets as from time
to time are deposited in the Certificate Account, the Distribution Account, the
Quarterly Interest Reserve Account and, if established, the REO Account (other
than amounts excluded pursuant to clause (i) above); and (iv) the rights of the
Depositor under each of the Mortgage Loan Purchase Agreements.
"REMIC I Discount Regular Interest": Any of the REMIC I Regular Interests
which relate to a particular Discount Mortgage Loan as described in the
Preliminary Statement hereto.
"REMIC I Non-Discount Regular Interest": Any of the REMIC I Regular
Interests which relate to a particular Non-Discount Mortgage Loan as described
in the Preliminary Statement hereto.
"REMIC I PO Regular Interest": The single REMIC I Regular Interest having a
REMIC I Remittance Rate of 0% and an initial Uncertificated Principal Balance of
$1,469,667 as described in the Preliminary Statement hereto.
"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 (a) any REMIC I Discount Regular
Interest, 6.75%, (b) the REMIC I PO Regular Interest, 0%, and (c) any REMIC I
Non-Discount Regular Interest, the Net Mortgage Rate as of the Cut-Off Date for
the related Non-Discount Mortgage Loan (or any successor REO Loan) to which such
REMIC I Non-Discount Regular Interest relates.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests conveyed in trust to the Trustee for the benefit of REMIC III,
as holder of the REMIC II Regular Interests, and the Holders of the Class R-II
Certificates pursuant to Section 2.06, with respect to which a separate REMIC
election is to be made.
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the 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 (a)_the REMIC II Class Q
Regular Interest, 0%, and (b)_each REMIC II Regular Interest other than the
REMIC II Class Q Regular Interest for any Distribution Date, the Weighted
Average Effective REMIC I Remittance Rate for such Distribution Date.
<PAGE>
-35-
"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests conveyed in trust to the Trustee for the benefit of the
Holders of the REMIC III Certificates pursuant to Section 2.08, with respect to
which a separate REMIC election is to be made.
"REMIC III Certificate": Any Class A-1, Class A-2, Class A-3, Class A-PO,
Class IO, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K or Class R-III Certificate.
"REMIC Administrator": The Trustee or any REMIC administrator appointed
pursuant to Section 8.14.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final Treasury Regulations and any published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and maintained by
the Special Servicer pursuant to Section 3.16 on behalf of the Trustee in trust
for the Certificateholders, which shall be entitled "GMAC Commercial Mortgage
Corporation," as Special Servicer, in trust for Holders of Merrill Lynch
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1998-C1-CTL.".
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Scheduled
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan). Each REO Loan shall be deemed to
have an initial unpaid principal balance and Stated Principal Balance equal to
the unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Scheduled Payments (other than a Balloon Payment), Assumed Scheduled Payments
(in the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor
<PAGE>
-36-
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, the Special Servicer or the Trustee
for the payment of, the costs of operating, managing and maintaining the related
REO Property or for the reimbursement to the Master Servicer or the Trustee for
other related Servicing Advances or Protective Advances) shall be treated:
first, as a recovery of accrued and unpaid interest on such REO Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of receipt; second, as a recovery of principal of such REO Loan to the extent of
its entire unpaid principal balance; and third, in accordance with the normal
servicing practices of the Master Servicer, as a recovery of any other amounts
due and owing in respect of such REO Loan. Notwithstanding the foregoing, all
amounts payable or reimbursable to the Master Servicer, the Special Servicer or
the Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and Special Servicing Fees and any unreimbursed Servicing Advances and P&I
Advances, together with any interest accrued and payable to the Master Servicer,
the Special Servicer or the Trustee in respect of such Servicing Advances and
P&I Advances in accordance with Sections 3.03(e) and 4.03(d), shall continue to
be payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee, as the case may be, in respect of an REO Loan pursuant to Section
3.05(a).
"REO Property": A Mortgaged Property acquired on behalf of the Trust Fund
in the name of the Trustee 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 Status Report": A report substantially containing the content
described in Exhibit O attached hereto, setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Determination Date immediately preceding the preparation of
such report, (i) the acquisition date of such REO Property, (ii) the amount of
income collected with respect to such REO Property (net of related expenses) and
other amounts, if any, received on such REO Property during the related
Collection Period and (iii) the value of the REO Property based on the most
recent appraisal or other valuation thereof available to the Special Servicer as
of such Determination Date (including any prepared internally by the Special
Servicer).
"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.
<PAGE>
-37-
"Required Appraisal": With respect to each Required Appraisal Mortgage
Loan, an Independent appraisal of the related Mortgaged Property prepared in
accordance with FIRREA and conducted in accordance with the standards of the
Appraisal Institute from an Independent Appraiser selected by the Special
Servicer.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is sixty
(60) days or more delinquent in respect of any Periodic Payments, (ii) that is
an REO Loan as to which the related REO Property is acquired on behalf of the
Trust Fund, (iii) that has been modified by the Special Servicer to reduce the
amount of any Periodic Payment, other than a Balloon Payment, (iv) to which a
receiver is appointed and continues in such capacity in respect of the related
Mortgage Property, (v) the Mortgagor of which shall have filed a petition or
been subjected to the appointment of a conservator or receiver or liquidator in
any insolvency or related proceeding or (vi) a Balloon Payment with respect to
which is due and has not been paid on its Stated Maturity Date.
"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(c).
"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, capital improvements and replacements to the
related Mortgaged Property (including any furniture, fixture or equipment
reserves and any other resources established with respect to environmental
testing and remediation, and tenant improvements, leasing commissions and
leasing concessions), and with respect to each Construction Loan, the
Construction Reserves and the Capitalized Interest Payments if any, made by the
related Mortgagor in respect of interest due under the related Credit Lease.
"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 or assistant 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.
<PAGE>
-38-
"RVI Policy": A non-cancelable residual value insurance policy that
guaranties the Balloon Payment on each Insured Balloon Loan issued by R.V.I.
American Insurance Company or its successors and assigns.
"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.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3 and Class IO
Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-PO, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J or
Class K Certificates.
"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 or on behalf of the Master Servicer, the
Special Servicer or the Trustee (to the extent not reimbursed by the Master
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(d), (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, (f) the operation,
management, maintenance and liquidation of any REO Property, including, without
limitation, appraisals, (g) compliance with the obligations of the Master
Servicer or the Trustee set forth in Section 2.03(a) and (h) certain consultant
expenses set forth in Section 3.19(b). Notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, which shall include costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses.
<PAGE>
-39-
"Servicing Fee": The Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be part
of the related Mortgage File) in the possession of the Depositor (and delivered
to the Master Servicer or Special Servicer) and relating to the origination and
servicing of any Mortgage Loan, including appraisals, surveys, engineering
reports and environmental reports.
"Servicing Officer": Any officer or employee of the Master Servicer or the
Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": The Master Servicer and the Special Servicer shall
each service and administer the Mortgage Loans that it is obligated to service
and administer pursuant to this Agreement on behalf of the Trustee and in the
best interests of and for the benefit of the Certificate holders (as determined
by the Master Servicer or the Special Servicer as the case may be in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows: (i) with the same skill, care
and diligence as is normal and usual in its general mortgage servicing and asset
management activities on behalf of third parties or on behalf of itself,
whichever is higher, with respect to mortgage loans and REO Properties that are
comparable to the Mortgage Loans; (ii) with a view to the timely collection of
all scheduled payments and interest under the Mortgage Loans -- or if a Mortgage
Loan comes into and continues in default and if in the good faith reasonable
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments, the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related Net
Mortgage Rate); and (iii) without regard to (A) 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, (B) the ownership of any Certificate by the
Master Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof, (C) the Master Servicer's obligation to make Advances, and (D) the
right of the Master Servicer or the Special Servicer, as the case may be, (or
any Affiliate thereof) to receive reimbursement of costs, or the sufficiency of
any compensation payable to it, hereunder or with respect to any particular
transaction (the conditions set forth in the immediately foregoing clauses (i),
(ii) and (iii), the "Servicing Standard").
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
<PAGE>
-40-
"Special Servicer": GMAC Commercial Mortgage Corporation, 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 Periodic 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
Periodic 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 Periodic 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 Periodic 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
clauses (a) above or (h) below) under the related Mortgage Loan
documents or a default by the Mortgagor under the related Credit Lease
that in the good faith reasonable judgment of the Master Servicer
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) provided that a Mortgage
Loan will not be a Specially Serviced Mortgage Loan pursuant to this
clause (c) solely because the Master
<PAGE>
-41-
Servicer makes a Protective Advance (unless such Protective Advance
becomes a Nonrecoverable Protective Advance) in respect of such
default; or
(d) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the related Mortgagor and
such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(e) the related Mortgagor shall have consented to (or otherwise have been
subjected 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 have admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations;
(g) the Master Servicer shall have received notice of the commencement of
foreclosure or similar proceedings with respect to the related
Mortgaged Property; or
(h) there shall have occurred a default with respect to payment of
insurance premiums or property taxes, including making escrow payments
for the payment of real estate taxes and insurance premiums with
respect to such Mortgage Loan that in the good faith reasonable
judgment of the Master Servicer materially impairs (without regard to
any Servicing Advance) 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 the lesser of thirty (30) days or
ten (10) days prior to the date the insurance becomes cancelable or
the taxes become delinquent) with respect to payment of insurance
premiums or property taxes (except to the extent that the related
Mortgagor is contesting in good faith the payment of such taxes in
accordance with the terms of the Mortgage Loan);
<PAGE>
-42-
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
Periodic 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 5 days following the entry of an order or
decree dismissing such proceeding;
(y) with respect to the circumstances described in clauses (c) or (h)
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 (h)
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 in writing 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 any states of Delaware,
Minnesota, Pennsylvania, Illinois, California and New York 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.
<PAGE>
-43-
"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 due or received, as the case may be,
during the related Collection Period and distributed to Certificateholders on
such Distribution Date, and (ii) the principal portion of any Realized Loss
incurred in respect of such Mortgage Loan (or successor or REO Loan) during the
related Collection Period for such Distribution Date. Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or REO
Property, then the "Stated Principal Balance" of such Mortgage Loan or of the
related REO Loan, as the case may be, shall be zero commencing as of the
Distribution Date in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J or Class K Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the Special
Servicer, as the case may be, 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 Regulations Section 1.860F-4(d) and Temporary Treasury
Regulations Section 301.6231(a)(7)-1T, which Person shall be the applicable
Plurality Residual Certificateholder.
"Tax Returns": With respect to (i) each of the REMICs created hereunder,
the federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
REMIC I, REMIC II and REMIC III due to its classification as a REMIC under the
REMIC Provisions, and (ii) with respect to any other portion of the Trust Fund
that does not constitute part of REMIC I, REMIC II and REMIC III, Internal
Revenue Service Form 1041, together, in each case, with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or
<PAGE>
-44-
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.
"Tenant": With respect to each Credit Lease, the lessee thereunder.
"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.
"Triple Net Lease": Each Credit Lease identified as a Triple Net Lease on
the Mortgage Loan Schedule.
"Trust Fund": Collectively, (i) all of the assets of REMIC I, REMIC II and
REMIC III, and (ii) any other interest on the Mortgage Loans which is
attributable to any portion of a Servicing Fee that is deemed to be in excess of
the amount of such Servicing Fee that constitutes reasonable servicing
compensation within the meaning of the REMIC Provisions.
"Trustee": Norwest Bank Minnesota, National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": The fee designated as such and payable to the Trustee
pursuant to Section 8.05.
"Trustee Fee Rate": 0.005% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest as of the
commencement of the Collection Period for such Distribution Date, accrued on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date and, to the extent permitted under
applicable law, also on any Uncertificated Distributable 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,
applicable to such REMIC II Regular Interest
<PAGE>
-45-
accrued on the Uncertificated Principal Balance of such REMIC II Regular
Interest outstanding immediately prior to such Distribution Date. Uncertificated
Accrued Interest in respect of any REMIC I Regular Interest or any REMIC II
Regular Interest shall accrue on the basis of a 360-day year consisting of
twelve 30-day months.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interests 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. With respect to any REMIC
II Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date, reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC II Regular Interests
for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any REMIC I
Regular Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, (a) the Uncertificated Principal Balance
of each REMIC I Discount Regular Interest shall equal the product of (i) the
Cut-Off Date Balance of the related Discount Mortgage Loan and (ii) the
difference between 1.0 and the Class A-PO Fraction for such Discount Mortgage
Loan, (b) the Uncertificated Principal Balance of the REMIC I PO Regular
Interest shall equal $1,469,667, and (c) the Uncertificated Principal Balance of
each REMIC I Non-Discount Regular Interest shall equal the Cut-Off Date Balance
of the related Non-Discount Mortgage Loan. As of the Cut-Off Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall equal
the Original Class Principal Balance of the corresponding Class of REMIC III
Certificates. 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(i), and shall be further reduced on such Distribution Date by all
Realized Losses and Additional Trust Fund Expenses deemed to have been allocated
thereto on such Distribution Date pursuant to Section 4.04(b). On each
Distribution Date, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall be reduced by all distributions of principal deemed to have been
made in respect of such REMIC I Regular Interest on such Distribution Date
pursuant to Section 4.01(j), and shall be further reduced on such Distribution
Date by such Realized Losses and Additional Trust Fund Expenses deemed to have
been allocated thereto on such Distribution Date pursuant to Section 4.04(c).
"Underwriter": Merrill Lynch, Daiwa Securities America Inc. and Legg Mason
Wood Walker, Incorporated.
<PAGE>
-46-
"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, an estate whose
income is includible in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the U.S. is able
to exercise primary supervision over the administration of the trust and one or
more U.S. fiduciaries have the authority to control all substantial decisions of
the trust, all within the meaning of Section 7701(a) of the Code.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Sequential Pay Certificates in proportion to the respective Class
Principal Balances of their Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. In addition, if any of the Master Servicer, the Special Servicer
and any Affiliate thereof is the holder of any Certificate, neither the Master
Servicer, the Special Servicer nor any Affiliate thereof, in its capacity as a
Certificateholder, shall have Voting Rights with respect to matters concerning
compensation affecting the Master Servicer or the Special Servicer. If the
Mortgage Loan Seller or any Affiliate thereof is the initial holder of any
Certificates, such holder shall have no Voting Rights in respect of such
Certificates. The Class IO Certificates and Class R-I, Class R-II, Class R-III
Certificates shall not have any Voting Rights.
"Weighted Average Effective REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to eight decimal places, of the respective REMIC I
Remittance Rates in respect of all of the REMIC I Regular Interests other than
the REMIC I PO Regular Interest as of the commencement of the related Collection
Period, weighted on the basis of the respective Uncertificated Principal
Balances of such REMIC I Regular Interests outstanding immediately prior to such
Distribution Date.
"Workout Mortgage Loan": Each Specially Serviced Mortgage Loan for which
the Special Servicer has engaged in the restructuring or workout of such
Mortgage Loan, such that with the passage of time such Mortgage Loan may be a
Corrected Mortgage Loan. A workout loan or restructured loan, shall not include
a Mortgage Loan in which the related Tenant or Mortgagor in good faith performed
a specific obligation, but due to clerical or technical errors (i.e. misdirected
wire transfer, improper account crediting, etc.) did not fulfill the related
obligations, but which the Special Servicer after reasonable inquiry and effort
caused such Mortgage Loans to be corrected.
"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 aggregate payment of interest which
would have accrued on such Mortgage Loan on each subsequent Due Date through the
maturity date of such Mortgage Loan, at a rate calculated as
<PAGE>
-47-
the difference between the Mortgage Rate on such Mortgage Loan and the
applicable U.S. treasury rate in effect on the date of Principal Prepayment
thereof, discounted at a rate set forth in the related Mortgage Note at or near
the time of prepayment. Any other prepayment premiums, penalties and fees not so
calculated will not be considered "Yield Maintenance Charges."
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the Trust
Fund, without recourse, for the benefit of the Certificateholders (and for the
benefit of the other parties to this Agreement as their respective interests may
appear) all the right, title and interest of the Depositor, in, to and under (i)
the Mortgage Loans, (ii) each of the Mortgage Loan Purchase Agreements and (iii)
all other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans and due after the Cut-Off Date. The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, the Mortgage Loan Sellers pursuant to the applicable
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or a Custodian appointed thereby
(with a copy to the Master Servicer), 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 the 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 45 days following the later of
the Closing Date or the delivery of such assignments and UCC Financing
Statements to the Custodian) cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate and to the extent timely delivered to
the Custodian in final, recordable form, each assignment of Mortgage, assignment
of Assignment of Leases and any other recordable documents relating to the
Mortgage Loan, in favor of the Trustee, as Trustee referred to in clause (iv) of
the definition of "Mortgage File" and each UCC-2 and UCC-3 assignment in favor
of the Trustee, as Trustee and so delivered to the Custodian and referred to in
clause (viii) of the definition of "Mortgage File." Each such assignment shall
reflect that it should be returned by the public recording
<PAGE>
-48-
office to the Custodian or its designee following recording, and each such UCC-2
and UCC-3 assignment shall reflect that the file copy thereof should be returned
to the Custodian or its designee following filing (and the Custodian shall
forward a copy of each document to Master Servicer upon receipt); 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 prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate.
(d) All documents and records in the possession of the Depositor or the
Mortgage Loan Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer (at the expense of the
Depositor or the applicable Mortgage Loan Seller) on or before the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall deliver to the Custodian and the Master
Servicer on or before the Closing Date a copy of a fully executed counterpart of
the Mortgage Loan Purchase Agreement, as in full force and effect on the Closing
Date.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of its right, title and
interest in the assets that constitute the Trust Fund, and further acknowledges
receipt by it or a Custodian on its behalf, subject to the proviso in the
definition of "Mortgage File" and the provisions of Section 2.01 and subject to
the further review provided for in Section 2.02(b), of (i) the Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, all in good faith and
without notice of any adverse claim, and declares that it or a Custodian on its
behalf holds and will hold such documents and the other documents received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Mortgage Loans and other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Mortgage Loan Sellers, that except as
identified in a written notice, a copy of which shall have been delivered by the
Custodian on or prior to the Closing Date to each of the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Mortgage Loan Sellers,
without regard to the proviso in the definition of "Mortgage File", each of the
documents specified in clause (i) of the definition of Mortgage File are in its
possession. In addition, within forty-five (45) Business Days after the Closing,
the Trustee or the Custodian on its behalf will review the Mortgage Files and
certify to each of the Depositor,
<PAGE>
-49-
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 related Mortgage File actually known by a Responsible Officer of the Trustee
to be required, clauses (vi) and (viii) of the definition of "Mortgage File" are
in its possession, (ii) all documents delivered or caused to be delivered by the
Mortgage Loan Sellers constituting the related Mortgage File have been reviewed
by it and appear regular on their face and appear to relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to 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 45 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
Trustee and Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred or any Mortgage Loan specifically identified in any exception
report annexed thereto as not being covered by such certification): (i) all
documents specified in clauses (i) through (v) and (vii) and, to the extent
provided in the related Mortgage File, clauses (vi) and (viii) of the definition
of "Mortgage File" are in its possession, (ii) all documents received by it in
respect of such Mortgage Loan have been reviewed by it and appear regular on
their face and appear to relate to such Mortgage Loan, and (iii) based on the
examinations referred to in Section 2.02(a) above and this Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii), (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
<PAGE>
-50-
warranty relating to the Mortgage Loans set forth in the applicable Mortgage
Loan Purchase Agreement (a "Breach"), and such Document Defect or Breach, as the
case may be, materially and adversely affects the interests of the
Certificateholders or the value of the affected Mortgage Loan, such party shall
give prompt written notice to the other parties hereto and to the Rating
Agencies. Promptly upon becoming aware of any such Document Defect or Breach
(including through such written notice provided by any party hereto, as provided
above), the Trustee shall request that the Mortgage Loan Seller, not later than
90 days from such Mortgage Loan Seller's receipt of such notice (or, in the case
of a Document Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions, not later than
90 days of any party to this Agreement discovering such Document Defect or
Breach), if such Document Defect or Breach shall materially and adversely affect
the value of the related Mortgage Loan or the interest of the Certificateholders
therein, cure such Document Defect or Breach, as the case may be, in all
material respects, which shall include payment of actual losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions solely due to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, repurchase the affected Mortgage Loan at the applicable Purchase Price
not later than the end of such 90-day period 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, such
Document Defect or Breach does not relate to the Mortgage Loan not being treated
as a "qualified mortgage" within the meaning of the REMIC Provisions, and 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 (A) with respect to any Breach, have an additional 90 day period to
complete such cure (or failing such cure, to complete such repurchase) and (B)
with respect to any Document Defect, have additional 90 day periods up to but
not extending beyond the second anniversary of the Closing Date to complete such
cure (or, failing such cure, to repurchase the related Mortgage Loan); and
provided, further, that with respect to such additional 90-day period such
Mortgage Loan Seller shall have delivered an Officer's Certificate to the
Trustee setting forth the reason such Document Defect or Breach is not capable
of being cured within the initial 90-day period and what actions 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 and will no longer be subject to the terms of this
Agreement. Notwithstanding the foregoing, the delivery of a commitment to issue
a policy of lender's title insurance in lieu of the delivery of the actual
policy of lender's title insurance shall not be considered a Document Defect
with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date. Any reasonable out-of-pocket expense incurred by
the Master Servicer or the Trustee, as the case may be, in carrying out its
duties pursuant to this Section 2.03(a) shall constitute a Servicing Advance.
<PAGE>
-51-
(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 that are prepared
and delivered to the Trustee by the Master Servicer and are necessary to permit
the Master Servicer to do so.
(c) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for its
own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and possesses
all licenses and authorizations necessary to carry on its business.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, does not and will not violate the Depositor's certificate of
incorporation or bylaws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) No consent, approval or authorization of or designation,
declaration, notice or filing with any governmental authority, corporation,
person or firm on the part of the Depositor is required in connection with
the valid execution and delivery of this Agreement or the consummation of
any other transactions contemplated hereby.
<PAGE>
-52-
(iv) The Depositor has the full power and authority to carry on its
business as now being conducted and to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(vi) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vii) The transfer of the Mortgage Loans to the Trust Fund as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(viii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or, in the Depositor's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(ix) Immediately prior to the transfer of the Mortgage Loans to the
Trust Fund pursuant to this Agreement, (A) the Depositor has good and
marketable title to, and is the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans.
(x) The Depositor is transferring the Mortgage Loans to the Trust Fund
free and clear of any liens, pledges, charges and security interests.
<PAGE>
-53-
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties and to the Rating Agencies.
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it in its capacity as
Trustee of the assets included in the Trust Fund. Concurrently with such
assignment and in exchange therefor, (a) the Trustee agrees to hold a portion of
each of the Mortgage Loans as part of REMIC I and (b) the Certificate Registrar,
pursuant to the written request of the Depositor executed by an officer of the
Depositor, has executed, and the Authenticating Agent has authenticated and
delivered to or upon the order of the Depositor, the Class R-I Certificates in
authorized denominations. The interests evidenced by the Class R-I Certificates,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership of REMIC I. The rights of the Class R-I Certificateholders and REMIC
II (as Holder of the REMIC I Regular Interests) to receive distributions from
the proceeds of REMIC I in respect of the Class R-I Certificates and the REMIC I
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-I Certificates and the REMIC I Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trust Fund for the benefit of the respective Holders of the
REMIC II Regular Interests and the Class R-II Certificates. The Trustee
acknowledges the assignment to it of the right, title and interest of the
Depositor in the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of all present and
future Holders of the REMIC II Regular Interests and the Class R-II
Certificates.
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates.
The Trustee pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, as the Certificate Registrar,
authenticated, as the Authenticating Agent, and delivered to or upon the written
order of the Depositor, the Class R-II Certificates in authorized denominations.
<PAGE>
-54-
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 Trust Fund for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to it of the REMIC II Regular Interests
and in exchange therefor, the Certificate Registrar has executed, and the
Trustee, as the Authenticating Agent, has authenticated and delivered to or upon
the written order of the Depositor, the REMIC III Certificates in authorized
denominations evidencing the entire beneficial ownership of REMIC III. The
rights of the holders of the respective Classes of REMIC III Certificates to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests evidenced or constituted by the
respective Classes of REMIC III Certificates in such distributions, shall be as
set forth in this Agreement.
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 Trust Fund, for the benefit of the
Certificateholders, in accordance with any and all applicable laws, the terms of
this Agreement and the terms 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 each Specially Serviced Mortgage Loan and 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 Sections 3.01(a) and 6.09, the Master Servicer and the
Special Servicer each shall have full power and authority, acting alone, to do
or cause to be done any and all things in connection with such servicing and
administration which it may deem
<PAGE>
-55-
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 execute any limited powers of attorney and other documents
furnished by the Master Servicer or the Special Servicer that are necessary or
appropriate to enable them to carry out their servicing and administrative
duties hereunder.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venture, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall undertake
reasonable efforts to collect all payments 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 default 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 ground lease or 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: first, as a recovery of any related and unreimbursed
Advances in respect of the related Mortgaged Property 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,
<PAGE>
-56-
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, late charges, Prepayment
Premiums and default 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) through (vi) of the
definition thereof shall be deemed to be applied: first, as a recovery of any
related and unreimbursed 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 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) or
3.11(d) 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 on any
Mortgage Loan shall not alter in any way the right of the Master Servicer, the
Special Servicer, the Trustee or any other Person to receive payments from the
Certificate Account as set forth in clauses (ii) through (xiv) of Section
3.05(a) from amounts so applied.
(c) In the Mortgage Loan Purchase Agreement, the Depositor has directed the
Mortgage Loan Seller to notify the Lease Enhancement Policy Issuer and the RVI
Insurer within 10 days after the Closing Date, that (i) both the Master Servicer
and the Special Servicer shall be sent notices under each Lease Enhancement
Policy and RVI Policy and (ii) the Master Servicer c/o Norwest Bank Minnesota,
National Association, as trustee for the registered holders of Merrill Lynch
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1998-C1-CTL, respectively, shall be the loss payee under each RVI Policy and
shall be named the insured party under each Lease Enhancement Policy. In the
event that the Master Servicer has actual knowledge of an Insured Event under
any Lease Enhancement Policy or RVI Policy, the Master Servicer shall prepare
and file a "Notice of Preliminary Claim" with the Lease Enhancement Policy
Issuer or the RVI Insurer, as the case may be, within five Business Days after
receiving notice or obtaining actual knowledge of any Insured Event under the
related policy and shall diligently process any claims under such policy in
accordance with the Servicing Standard. The Master Servicer will abide by the
terms and conditions relating to enforcing claims and monitor the dates by which
any claim or action must be taken (including delivering any notices to the RVI
Insurer and Lease Enhancement Policy Insurer or performing any actions required
under each policy) under each RVI Policy and Lease Enhancement Policy to realize
the full value of such RVI Policy and Lease Enhancement Policy for the benefit
of the Certificateholders.
(d) In the event that the Master Servicer receives notice of any Policy
Termination Event, the Master Servicer shall provide written notice of such
Policy
<PAGE>
-57-
Termination Event to the Trustee and the Rating Agencies and redress such Policy
Termination Event in accordance with the Servicing Standard. Any legal fees
incurred in connection with a resolution of a Policy Termination Event shall be
paid by the Master Servicer and shall be reimbursable to it as an Additional
Trust Fund Expense.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts; Servicing Advances and Protective
Advances.
(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. Subject to the Mortgage Loan
documents, 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 Escrow
Payments and comparable items; (ii) reimburse the Master Servicer, the Trustee
or the Special Servicer for any Servicing Advances; (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 derived from any 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 only 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) with respect to Mortgage Loans which provide
escrows for the payment of such items, reasonable efforts to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
and shall use efforts consistent with the Servicing Standard to cause the
Mortgagor or Tenant to 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 use reasonable efforts consistent with the Servicing
Standard to cause the
<PAGE>
-58-
related Mortgagor or related Tenant to make payments in respect of such items at
the time they first become due.
(c) The Master Servicer shall, as to all Mortgage Loans, establish and
maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related maintenance, repairs and/or capital
improvements at the related Mortgaged Property if the repairs and/or capital
improvements have been completed, or to pay for the costs of any repairs or
maintenance under any Double Net Lease relating to a Maintenance Right or
Additional Right of the related Tenant, such withdrawals to be 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. Subject to the
applicable Mortgage or other Mortgage Loan documents, funds in the Reserve
Accounts may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. Subject to the applicable Mortgage or other Mortgage
Loan documents, all Reserve Accounts shall be Eligible Accounts. The Reserve
Accounts shall not be considered part of the segregated pool of assets
comprising REMIC I, REMIC II or REMIC III. For each Mortgage Loan (other than a
Construction Loan that has not completed construction), consistent with the
Servicing Standard, the Master Servicer may waive or extend the date set forth
in any agreement governing such Reserve Accounts by which the required repairs
and/or capital improvements at the related Mortgaged Property must be completed
if the related Mortgagor is diligently undertaking such repairs or capital
improvements or otherwise if such delay cannot give rise to a default under the
related Credit Lease.
(d) In accordance with the Servicing Standard, the Master Servicer (at the
direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) shall 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 and other similar
items that are or may become a lien thereunder, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies, in each instance if and
to the extent Escrow Payments collected from the related Mortgagor or related
Tenant are insufficient to pay such item when due and the related Mortgagor or
related Tenant 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. The Master Servicer shall make a Protective Advance with
respect to a Mortgaged Property in an amount equal to all such funds as are
necessary for the purpose of, and to the extent of insufficient Reserve Funds or
excess cash flow after scheduled debt service on the related Mortgage Loan
available for, costs of maintenance or repair of a Mortgaged Property or other
obligation of the related Mortgagor to the extent the failure to complete such
maintenance or repair or other obligation may give rise to a Maintenance Right
or Additional Right of the related Tenant under a Double Net Lease or Triple Net
Lease and provided that the particular Protective Advance would not, if made,
constitute a Nonrecoverable Protective Advance. All such Servicing Advances and
Protective Advances shall be reimbursable in the first instance from collections
from the related
<PAGE>
-59-
Mortgagor, of the related Reserve Funds or excess cash flow after scheduled debt
service on the related Mortgage Loan or as may be provided in the related Credit
Lease and further as provided in Section 3.05(a). No costs incurred by the
Master Servicer in effecting (i) the payment of real estate taxes, assessments
and, if applicable, ground rents on or in respect of such Mortgaged Properties
and (ii) costs of maintenance, repair or remediation of a Mortgaged Property to
the extent the failure to complete such work may give rise to a Maintenance
Right or Additional Right of the related Tenant under a Double Net Lease or
Triple Net Lease, in each case 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 or the related Tenant such costs together
with interest thereon including any lien granted with respect to any advances
made by any mortgagee under any Mortgage. After a Policy Termination Event has
occurred with respect to the Lease Enhancement Policy, the Master Servicer shall
not be obligated to make any Protective Advances with respect to any Mortgaged
Property to the extent the amounts to be paid by a Protective Advance would have
been payable by the Lease Enhancement Policy prior to such Policy Termination
Event.
If the Master Servicer or Special Servicer, as the case may be, is required
under any provision of this Agreement (including, but not limited to, this
Section 3.03(d)) to make a Servicing Advance or Protective Advance, but neither
does so within 15 days after such Advance is required to be made, the Trustee
shall, if a Responsible Officer of the Trustee has actual knowledge of such
failure on the part of the Master Servicer or Special Servicer, as the case may
be, give written notice of such failure, as applicable, to the Master Servicer
or the Special Servicer. If such Servicing Advance or Protective Advance is not
made by the Master Servicer or the Special Servicer within three Business Days
after such notice then (subject to a determination that such Servicing Advance
or Protective Advance would not be a Nonrecoverable Advance) the Trustee shall
make such Servicing Advance or Protective Advance. Any failure by the Master
Servicer or the Special Servicer to make a Servicing Advance or Protective
Advance hereunder shall constitute an Event of Default by the Master Servicer or
the Special Servicer, as the case may be, subject to and as provided in Section
7.01(a)(iii).
(e) In connection with its recovery of any Servicing Advance from the
Certificate Account pursuant to Section 3.05(a), each of the Master Servicer,
the Special Servicer and the Trustee shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account to the extent not recovered
from the related Mortgagor or Tenant, any unpaid 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 to the extent not recovered from the related Mortgagor or Tenant.
In connection with its recovery of any Protective Advance from the Certificate
Account pursuant to Section 3.05(a), each of the Master Servicer, the Special
Servicer and the Trustee shall be entitled to receive, out of any amounts then
on deposit in the Certificate Account, any unpaid interest at the Protective
Advance Rate in effect from time to time, compounded annually,
<PAGE>
-60-
accrued on the amount of such Protective Advance from the date made to but not
including the date of reimbursement. The Master Servicer shall reimburse itself,
the Special Servicer or the Trustee as appropriate and in accordance with
Section 3.05(a), for any Servicing Advance or Protective Advance as soon as
practicable after funds available for such purpose are deposited in the
Certificate Account or Servicing Account.
(f) The determination by either the Master Servicer, or the Special
Servicer that it has made a Nonrecoverable Servicing Advance or Nonrecoverable
Protective Advance, or that any proposed Servicing Advance or Protective
Advance, if made, would constitute a Nonrecoverable Servicing Advance or
Nonrecoverable Protective 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 setting forth the Appraised
Value of the related Mortgaged Property or REO Property, as the case may be;
conducted in accordance with the standards of the Appraisal Institute performed
pursuant to Section 3.09(a) or if no such appraisal has been performed, a copy
of an appraisal setting forth the Appraised Value 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 Tenant's credit rating 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. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance or Protective Advance, if made, would be a Nonrecoverable Advance;
provided, however, that if the Master Servicer or the Special Servicer has
failed to make a Servicing Advance or Protective Advance for reasons other than
a determination by the Master Servicer or the Special Servicer, as applicable,
that such Servicing Advance or Protective Advance would be a Nonrecoverable
Advance, the Trustee shall make such Servicing Advance or Protective Advance
within the time periods required by Section 3.03(d) unless the Trustee, in good
faith, makes a determination that such Servicing Advance or Protective Advance
would be a Nonrecoverable Advance. The Master Servicer, in its corporate
capacity and not in its capacity as Master Servicer under this Agreement, will
be entitled to obtain from the Trustee and the Trustee will deliver to the
Master Servicer in its corporate capacity, upon receipt of a Request for Release
from the Master Servicer substantially in the form of Exhibit D-1, the Mortgage
Loan File for each Encumbered Mortgage Loan within 30 days of the payment in
full of all amounts owed under such Mortgage Loan in respect of principal and
interest accrued therein. The Master Servicer, to the extent permitted under the
Mortgage Loan documents and applicable law and consistent with the Servicing
Standard, may enforce any lien created by such Mortgage Loan documents with
respect to reimbursement of Protective Advances.
SECTION 3.04. Certificate Account, Distribution Account and Quarterly
Interest Reserve 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
<PAGE>
-61-
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, within two Business Days of receipt of available funds (in the case of
payments by Mortgagors or Tenants under the related Credit Leases 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 unless
such Mortgage Loan is a Quarterly Pay Loan in which case the Master
Servicer shall deposit all amounts on account of interest for such
Quarterly Pay Loan (net of the Trustee Fee, Master Servicing Fee, Special
Servicing Fee and other expenses allocable to such Quarterly Pay Loan and
permitted to be withdrawn from the Certificate Account pursuant to Section
3.05(a) and net of any related Quarterly Pay Loan Interest Excess) into the
Quarterly Interest Reserve Account pursuant to Section 3.04(c), and with
respect to each Construction Loan, the amounts transferred by the Master
Servicer from the Reserve Account pursuant to Section 3.19(b);
(iii) all Prepayment Premiums;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Liquidation Proceeds described in clause (vi) of the definition thereof
that are required to be deposited in the Distribution Account pursuant to
Section 9.01) received in respect of any Mortgage Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c); and
(viii) any collections on the Fleet Letter of Credit pursuant to
Section 3.19(b).
<PAGE>
-62-
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, amounts to be deposited in Reserve Accounts, 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 for the related Distribution Date then on deposit
in the Certificate Account and Quarterly Interest Reserve Deposit, together with
(i) any Prepayment Premiums 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. All
amounts on deposit in the Distribution Account shall remain uninvested.
<PAGE>
-63-
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Paying Agent for deposit (without duplication) 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 in connection with the purchase by the
Master Servicer 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) The Master Servicer shall establish and maintain one or more accounts
(collectively, the "Quarterly Interest Reserve Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Quarterly
Interest Reserve Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Quarterly Interest Reserve Account,
within two Business Day of receipt of available funds (in the case of payments
by Mortgagors or other collections on the Quarterly Pay Loans) or as otherwise
required hereunder, all interest collected in respect of each Quarterly Pay Loan
(net of the Trustee Fee, Master Servicing Fee, Special Servicing Fee and other
expenses allocable to such Quarterly Pay Loan and permitted to be withdrawn from
the Certificate Account pursuant to Section 3.05(a)) 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 interest on each Quarterly Pay
Loan 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).
On the Closing Date, the Depositor shall direct the Mortgage Loan Seller to
deliver to the Master Servicer and the Master Servicer shall deposit into the
Quarterly Interest Reserve Account the Initial Quarterly Interest Reserve
Deposit for each Quarterly Pay Loan.
(d) Funds in the Certificate Account, the Distribution Account and the
Quarterly Interest Reserve Account may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall give
written notice to the Trustee, the Special Servicer and the Rating Agencies of
the location of the Quarterly Interest Reserve Account and Certificate Account
as of the Closing Date and of the new location of the Certificate Account, or
the Quarterly Interest Reserve Account, prior to any change thereof.
<PAGE>
-64-
As of the Closing Date, the Distribution Account shall be established at the
office of the Trustee located in Minneapolis, Minnesota, and the Trustee shall
give notice to the Master Servicer, the Special Servicer and the Rating Agency
of the new location of the Distribution Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Quarterly Interest Reserve
Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Paying Agent for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b);
(ii) to reimburse the Trustee and itself, in that order, for
unreimbursed P&I Advances, the Master Servicer's right to reimburse the
Trustee and itself, in that order, 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
Fee) on and principal (net of any related 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, out of general collections on the
Mortgage Loans and any REO Property, earned and unpaid Special Servicing
Fees in respect of each Specially Serviced Mortgage Loan and REO Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Recovery Fees in respect of each
Specially Serviced Mortgage Loan, Workout 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
<PAGE>
-65-
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) (provided that no 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 Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement, by the Majority
Subordinate Certificateholder pursuant to Section 3.18(b) or by the Master
Servicer, Special Servicer or Depositor pursuant to Section 9.01);
(vi) to reimburse the Trustee first and then itself, and the Special
Servicer for any unreimbursed Servicing Advances and Protective Advances,
the Trustee's, the Master Servicer's or Special Servicer's right, as the
case may be, to reimbursement pursuant to this clause (vi) with respect to
any Servicing Advance and Protective Advances being limited to, payments
made by or on behalf of the related Mortgagor that are allocable to such
Servicing Advance or Protective Advance, or from the 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 or Protective Advance was made;
(vii) to reimburse the Trustee first, and then itself and the Special
Servicer for any unreimbursed Advances that have been determined to be
Nonrecoverable Advances or to pay, with respect to any Mortgage Loan or REO
Loan as to which a Final Recovery Determination has been made, any related
earned Master Servicing Fee to itself that remained unpaid in accordance
with clause (iii) above;
(viii) at or following such time as it reimburses itself, the Special
Servicer or the Trustee for any unreimbursed Advance pursuant to clause
(ii), (vi) or (vii) above or reimburses the Special Servicer pursuant to
Section 3.09 for any unreimbursed Servicing Advance, to pay the Trustee
first, and then itself and the Special Servicer out of general collections
on the Mortgage Loans and any REO Properties, any interest accrued and
payable thereon in accordance with Section 3.03(e) or 4.03(d), as
applicable;
(ix) to pay, out of general collections on the Mortgage Loans and any
REO Property, 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;
<PAGE>
-66-
(xi) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for the cost of an Independent Appraiser or other expert in
real estate matters retained pursuant to Section 3.03(f), 3.09(a), 3.18(e)
or 4.03(c);
(xii) to pay, out of general collections on the Mortgage Loans and any
REO Properties, 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, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the advice of counsel contemplated by Section
3.17(a)(iii), (B) the cost of the Opinions of Counsel contemplated by
Sections 3.09(b)(ii), 3.16(a) and 11.02(a), (C) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and interests of
Certificateholders, (D) the cost of obtaining the REO Extension sought by
the Special Servicer as contemplated by Section 3.16(a), and (E) the cost
of recording this Agreement in accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the appropriate Mortgage
Loan Seller, the Majority Subordinate Certificateholder or any other
Person, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xv) to withdraw any Quarterly Pay Loan Interest Excess pursuant to
Section 3.05(c);
(xvi) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01; and
(xvii) to pay any funds that have been deposited into the Certificate
Account in error.
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) -
(xiv) above.
The Master Servicer shall pay to the Special Servicer (or to third-party
contractors at the direction of the Special Servicer) or the Trustee from the
Certificate Account amounts permitted to be paid to the Special Servicer (or to
such third-party contractors) or the Trustee therefrom promptly upon receipt of
a certificate of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee, as the case may be, describing the item and amount to
which the Special Servicer (or such third-party contractors) or the Trustee is
entitled. The Master Servicer may rely conclusively on any such certificate and
shall have no
<PAGE>
-67-
duty to recalculate 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. With
respect to each Mortgage Loan for which it makes an Advance, the Trustee shall
keep and maintain separate accounting for each Mortgage Loan, on a loan by loan
and property basis, for the purpose of justifying any request for withdrawal
from the Certificate Account for reimbursements of Advances or interest thereon.
(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;
(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) [RESERVED]
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Section 10.01(i), or (C) as
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Trustee which amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Trustee, the REMIC Administrator, the Master Servicer or the
Special Servicer is liable therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Master Servicer shall on each P&I Advance Date, withdraw from the
Quarterly Interest Reserve Account and deposit into the Distribution Account in
respect of each Quarterly Pay Loan, an amount equal to the lesser of (x) the
Quarterly Pay Interest
<PAGE>
-68-
Deposit for such Quarterly Pay Loan and (y) amounts remaining on deposit in the
Quarterly Interest Reserve Account in respect of such Quarterly Pay Loan. On
each P&I Advance Date for which any Quarterly Pay Interest Excess exists, the
Master Servicer shall withdraw such Quarterly Pay Interest Excess from the
Collection Account and remit such Quarterly Pay Interest Excess in next day
funds to the Mortgage Loan Seller or its designee.
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Certificate Account and the REO Account.
(a) The Master Servicer may direct any depository institution maintaining a
Servicing Account, a Reserve Account, a Quarterly Interest 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 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. 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 Quarterly
Interest Reserve 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, as applicable, 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, Servicing Accounts,
Quarterly Interest Reserve Account and Reserve Accounts), 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
<PAGE>
-69-
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
Quarterly Interest Reserve 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 (subject to the Mortgage Loan documents) 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(c) or 3.05(a), as
applicable. Whether or not the Special Servicer directs the investment of funds
in the REO Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each
Collection Period, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(b). If any loss shall be incurred in respect of any Permitted Investment on
deposit in any Investment Account (if such amounts were invested for the benefit
of the Master Servicer), the Master Servicer (in the case of the Servicing
Accounts, the Reserve Accounts, the Certificate Account and Quarterly Interest
Reserve 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 written
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, consistent with the Servicing
Standard, 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
<PAGE>
-70-
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 "claims paying ability" rating of at least "A"
from Standard & Poor's and DCR, or if not rated by DCR then a comparable rating
from at least one other nationally recognized statistical rating agency. The
Majority Subordinate Certificateholder may request that earthquake insurance be
secured by the Master Servicer or the Special Servicer, as applicable, 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," "A2" and "A" from Standard & Poor's, Moody's (if then rated by
Moody's) and DCR (if then rated by DCR), respectively (or Standard & Poor's and
a comparable rating from one other nationally recognized statistical rating
agency, if such insurer is not rated by Moody'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.
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
Trust Fund; 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 in each case in accordance with the terms of the related Mortgage
and 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 (or guaranteed
by or backed in writing by a company having such claims-paying rating) of "A,"
"A2" and "A" or better from Standard & Poor's, Moody's and DCR, respectively (or
Standard & Poor's and a comparable rating from one other nationally recognized
statistical rating agency, if such insurer is not rated by Moody's and DCR) or
such lower rating of any Rating Agency or rating from any other nationally
recognized statistical rating agency as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
<PAGE>
-71-
Certificates, as evidenced in writing by the Rating Agencies, and (ii) provides
protection equivalent to that of 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 or if funds are to be applied to the restoration or repair
of the related Mortgaged Property, the Servicing Account, from its own funds the
amount not otherwise payable under the blanket policy because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertain to the Mortgage Loan. The Master Servicer or the Special Servicer,
as appropriate, shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement in which Specially Serviced Mortgage
Loans or REO Properties are part of the Trust Fund) keep in force with Qualified
Insurers a fidelity bond issued by an insurer having a claims-paying rating (or
guaranteed by or backed in writing by a company having such claims-paying
rating) of "A," "Baa3" and "A" or better from Standard & Poor's, Moody's (if
then rated by Moody's) and DCR (if then rated by DCR), respectively, or such
lower rating of any Rating Agency or rating from any other 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, such fidelity bond to 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 cause the
qualification, downgrading or withdrawal of 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 provision if an Affiliate thereof has such fidelity
bond coverage and, by the terms of such fidelity bond, the coverage afforded
thereunder extends to the Master Servicer or the Special Servicer, as the case
may be. Such fidelity bond shall provide that the insurer will endeavor to
deliver written notice to the Trustee ten days 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 (or guaranteed or backed
in writing by a company having such claims-paying rating) of "A," "Baa3" and "A"
or better from Standard & Poor's, Moody's (if then rated by Moody's) and 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
<PAGE>
-72-
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, 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 that the insurer will
endeavor to deliver written notice to the Trustee ten days prior to
cancellation. The Master Servicer and the Special Servicer shall each cause the
Trustee to be named as a certificateholder 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, and the insurance specified in Section 3.07(c),
their respective direct or indirect parent) are rated at least "A" or the
equivalent 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.
(a) With respect to all non-Specially Serviced Mortgage Loans, the Master
Servicer, and with respect to all Specially Serviced 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
Master Servicer or 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 Master Servicer or Special Servicer,
as applicable, has made any such determination, the Special Servicer shall
deliver to the Trustee, the Rating Agencies and the Master Servicer (if such
determination has been made by the Special Servicer) an Officers' Certificate
setting forth the basis for such determination. Neither the Master Servicer nor
Special Servicer shall (a) exercise any such waiver in respect of a
due-on-encumbrance provision for any Mortgage Loan or (b) waive any due on sale
provision for any Mortgage Loan that has a principal balance in excess of 2% of
the aggregate principal balances of all Mortgage Loans without receiving the
prior written confirmation from the Rating Agencies that such action would not
result in a downgrading, qualification or withdrawal of the ratings then
assigned to the Certificates; provided that, in the event that the principal
balance of the related Mortgage Loan is equal to or less than 2% of the
aggregate principal balance of all of the Mortgage Loans as of the date of such
waiver, no prior written consent will be required from DCR, but the Special
Servicer will deliver notice of such waiver to DCR. Neither the
<PAGE>
-73-
Master Servicer nor the Special Servicer shall approve a request from a
Mortgagor to incur additional indebtedness except as provided in the related
Mortgage Loan documents and to the extent not inconsistent with the related
Mortgage Loan documents the Master Servicer will obtain the prior written
confirmation that the incurrance of such additional indebtedness will not result
in a downgrade, withdrawal or qualification on the then-current ratings assigned
to the Certificates. The Master Servicer will take no action which impairs the
enforceability of the Lease Enhancement Policy, any RVI Policy or the Fleet
Letter of Credit. Notwithstanding the foregoing, no restriction with respect to
any further encumbrances set forth herein shall apply to any lien placed on a
Mortgaged Property as the result of any Master Servicer making a Protective
Advance hereunder.
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 of
establishing the fair market value of any Mortgaged Property securing a
defaulted Mortgage Loan, whether for purposes of bidding at foreclosure or
otherwise, it may, at the expense of the Trust Fund, have an Appraisal performed
with respect to such property by an Independent Appraiser or other expert in
real estate matters. With respect to each Required Appraisal Mortgage Loan, the
Special Servicer will be required to obtain a Required Appraisal within 60 days
of a Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an
appraisal meeting the requirements of a Required Appraisal was obtained for such
Required Appraisal Mortgage Loan within the prior 12 months in which case such
appraisal shall be the Required Appraisal) 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). The Special Servicer
shall deliver a copy of any such appraisal to the Master Servicer.
<PAGE>
-74-
(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 any of REMIC I, REMIC II or REMIC III under the REMIC Provisions or
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
at any time that any 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 Trust Fund,
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, 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 an Environmental Assessment of such Mortgaged Property which was performed by
an Independent Person who regularly conducts Environmental Assessments and which
was performed within six months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be delivered to the
Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to acquire
title to or possession of the Mortgaged Property and to take such actions
as are necessary to bring the Mortgaged Property into compliance therewith
in all material respects; and
(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous Materials
for which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations or,
<PAGE>
-75-
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 the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph, may be reimbursed to
the Special Servicer from the Certificate Account as a Servicing Advance; and if
any such Environmental Assessment so warrants, the Special Servicer shall, as a
Servicing Advance, perform or cause to be performed such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (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 (i) and (ii) of the
first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a Specially Serviced 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 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
Master Servicer shall deliver such report to the Trustee in accordance with
Section 3.12, monthly in writing as to any actions taken by the Special Servicer
with respect to any Mortgaged Property that represents security for a Specially
Serviced 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 (i) and (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.
<PAGE>
-76-
(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) 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 in writing, who shall release or 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
<PAGE>
-77-
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 three Business Days (or within such shorter period 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 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 respecting
which the related interest payment due on such Mortgage Loan or deemed to be due
on such REO Loan is computed and calculated on the basis of a 360-day year
consisting of twelve 30-day months. 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). Subject to Section 3.22, the right to
<PAGE>
-78-
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,
default interest, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees
(excluding Prepayment Premiums), 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) 100% of any assumption fee to the extent actually paid
by a Mortgagor with respect to any Non-Specially Serviced Mortgage Loan, may be
retained by the Master Servicer and are not required to be deposited in the
Certificate Account. The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) Prepayment Interest Excesses (but only
insofar as the aggregate of such Prepayment Interest Excesses collected during
any Collection Period exceeds the aggregate amount of Prepayment Interest
Shortfalls incurred during such Collection Period); (ii) interest or other
income earned on deposits in the Reserve Accounts, the Quarterly Interest
Reserve Accounts and the Certificate Account, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
each such account for each Collection Period), and (iii) to the extent not
required to be paid to any Mortgagor under applicable law, any interest or other
income earned on deposits in the Servicing Accounts maintained thereby. The
Master Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of its
Sub-Servicers 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 same principal amount
respecting which the related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months. 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, Workout
Mortgage Loan and REO Loan, the Special Servicer shall be entitled to the
Recovery Fee payable out of, and equal to 1.0% 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); provided that no
<PAGE>
-79-
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 Depositor, the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder 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 Workout Mortgage Loan and such Person
is subsequently terminated as Special Servicer hereunder, and if such Workout
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 Recovery Fees payable in respect to such Workout Mortgage Loan,
and no successor Special Servicer shall be entitled to any Recovery Fees payable
in respect thereof, in either case unless and until such Workout 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 Recovery Fee payable in connection with the receipt of the Liquidation
Proceeds derived from such sale.
Subject to Section 3.22, the Special Servicer's right to receive the
Special Servicing Fee and the 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,
default interest, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees
(excluding Prepayment Premiums), in each case to the extent actually paid by a
Mortgagor with respect to a Specially Serviced Mortgage Loan, (ii) 100% of any
assumption fee to the extent actually paid by a Mortgagor with respect to any
Specially Serviced Mortgage Loan, 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 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
<PAGE>
-80-
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. The
Master Servicer with respect to each non-Specially Serviced Mortgage Loan, and
the Special Servicer with respect to each Specially Serviced Mortgage Loan will
inspect or cause the inspection of each Mortgaged Property once every three
calendar years if the related Tenant has a published rating of not less than
Baa3/BBB- (Moody's and Standard & Poor's, respectively), every two (2) years if
the related Tenant (or Guarantor) has a published rating between Ba1/BB+ and
Ba3-/BB-, and annually if the related Tenant has a published rating of less than
Ba3/BB-. The Master Servicer will inspect or cause to be inspected annually each
Mortgaged Property for which no published rating is publicly available for the
related Tenant and such Mortgaged Property Loan represents 5% or more of the
aggregate Cut-Off Principal Balance of the Mortgage Loans, and will inspect or
cause to be inspected every second year each other Mortgaged Property for which
the related Tenant has no published, publicly available rating. In the event the
published rating for any Tenant or Guarantor is downgraded by either of Standard
& Poor's, Moody's or DCR by one or more rating increment (i.e., Aa/AA to A/A, or
Baa3/BBB- to Ba3/BB-) and no inspection has been performed due to a ratings
downgrade in the preceding 12 months for the related Mortgaged Property, then in
each such instance, the Master Servicer shall cause all Mortgaged Properties
leased to such Tenant to be inspected as soon as reasonably practical.
The Master Servicer or Special Servicer as the case may be shall prepare or
cause to be prepared 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 Master Servicer or Special Servicer as the case may be shall make
copies of all such inspection reports available for review by Certificateholders
and Certificate Owners during normal business hours at the offices of the
Special Servicer. The Special Servicer shall forward copies of any such
inspection reports to the Trustee.
(b) Not later than 2:00 P.M. New York City time on the second Business Day
following each Determination Date, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer the following reports with respect to the
Specially Serviced Mortgage Loans (and, if applicable, the related REO
Properties) providing the required information as of such Determination Date:
(i) a Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report;
(iii) an Historical Loan Modification Report; (iv) an REO Status Report; and (v)
a Loan Payoff Notification Report.
<PAGE>
-81-
(c) Not later than 12:00 Noon on the third Business Day after each
Determination Date, the Master Servicer shall deliver or cause to be delivered
to the Trustee the following reports with respect to the Specially Serviced
Mortgage Loans (and, if applicable, the related REO Properties) providing the
required information as of such Determination Date: (i) the Delinquent Loan
Status Report; (ii) the Historical Loss Estimate Report; (iii) the Historical
Loan Modification Report; (iv) the REO Status Report; and (v) a Loan Payoff
Notification Report. On the third Business Day after each Determination Date,
the Master Servicer will deliver to the Trustee with respect to each Tenant and
any Guarantor as of a date no earlier than three Business Days prior to such
Determination Date: (i) all publicly available ratings for such Tenant and any
Guarantor as of such date, (ii) all publicly available ratings for such Tenant
or Guarantor included in the report prepared pursuant to this Section 3.12(c)
for the immediately preceding Determination Date (or in the case of the first
Determination Date, such ratings set forth in the Prospectus on page S-39), and
(iii) whether such Tenant or Guarantor has been placed on a credit watch.
(d) The Special Servicer will deliver to the Master Servicer the reports
set forth in Section 3.12(b) and the Master Servicer shall deliver to the
Trustee the reports set forth in Section 3.12(c) in an electronic format
reasonably acceptable to the Special Servicer and the Master Servicer with
respect to the reports set forth in Section 3.12(b), and the Master Servicer and
the Trustee with respect to the reports set forth in Section 3.12(c). The Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Section 3.12(b). The Trustee may,
absent actual knowledge of an error by a Responsible Officer of the Trustee or
manifest error, conclusively rely on the reports to be provided by the Master
Servicer pursuant to Section 3.12(c). In the case of information or reports to
be furnished by the Master Servicer to the Trustee pursuant to Section 3.12(c),
to the extent that such information is based on reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and to the extent that such reports
are to be prepared and delivered by the Special Servicer pursuant to Section
3.12(b), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by Section 3.12(c) caused by
the Special Servicer's failure to timely provide any report required under
Section 3.12(b) of this Agreement.
(e) Notwithstanding the foregoing, the Master Servicer and the Special
Servicer shall not be liable with respect to any information in any Loan Payoff
Notification Report delivered hereunder with respect to the amount of principal
expected to be paid, the expected date of payment or any Yield Maintenance
Charge or Percentage Premium due; provided that the Master Servicer, consistent
with the Servicing Standard, shall be responsible for the accurate calculation
of any actual loan payoff amounts or Prepayment Premiums received from a
Mortgagor or Tenant as provided in the related Mortgage Note.
<PAGE>
-82-
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, the Depositor, 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, 1999, an Officers' Certificate stating, as to each signer thereof,
that (i) a review of the activities of the Master Servicer or the Special
Servicer, as the case may be, during the preceding calendar year and of its
performance under this Agreement has been made under such officer's supervision,
(ii) to the best of such officer's knowledge, based on such review, the Master
Servicer or the Special Servicer, as the case may be, has fulfilled all of its
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding qualification, or challenging the status,
of any portion of the Trust Fund as a REMIC from the Internal Revenue Service or
any other governmental agency or body or, if it has received any such notice,
specifying the details thereof.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30th of each year, beginning in 1999, the Master
Servicer at its expense shall cause a firm of independent public accountants
(which may also render other services to the Master Servicer) and that is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Trustee and to the Depositor to the effect that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Master Servicer, which includes an assertion that the Master
Servicer has complied with certain minimum mortgage loan servicing standards (to
the extent applicable to commercial loans) identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respected to those Sub-Servicers.
SECTION 3.15. Access to Certain Information.
Upon ten days prior written notice, the Trustee shall make available at the
Corporate Trust Office (or in the case of the Mortgage Loan File or the
information specified in clause (f) below, at its offices in New York City or
Minneapolis, Minnesota), during normal business hours, for review by any
Certificateholder or any person identified by a
<PAGE>
-83-
Holder or its designated agent in writing to the Trustee, as a prospective
transferee of such an interest, the Trustee, the Rating Agencies, the
Underwriters and anyone specified thereby 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 and all reports, statements and analyses
delivered by the Master Servicer since the Closing Date pursuant to Section
3.12(c), (c) all Officer's Certificates delivered by the Master Servicer to the
Trustee since the Closing Date pursuant to Section 3.13, (d) all accountants'
reports delivered to the Trustee 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
Trustee, (f) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Special Servicer and (g) any and all Officers'
Certificates and other evidence delivered by the Master Servicer or the Special
Servicer, as the case may be, to support its determination that any Advance was
or, if made, would be a Nonrecoverable Advance. Copies of any and all of the
foregoing items will be available from the Trustee, upon request and shall be
provided to any of the Rating Agencies at no cost pursuant to any of their
requests.
In connection with providing access to or copies of the items described in
the preceding paragraph pursuant to this Section 3.15, the Trustee shall
require: (a) in the case of Certificate Owners, a confirmation executed by the
requesting Person substantially in the form of Exhibit M hereto (or such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a beneficial holder of Book-Entry Certificates and, subject
to the last sentence of this paragraph, will keep such information confidential
(except that such Certificate Owner may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit N hereto (or such other form as may
be reasonably acceptable to the Trustee) generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. The Holders of the Certificates, by their
acceptance thereof, will be deemed to have agreed, subject to the last sentence
of this paragraph, to keep such information confidential (except that any Holder
may provide such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential).
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Trustee pursuant to this Section
3.15 that has previously been made available via the Trustee's internet website
or has previously been filed with the Commission, and the Trustee shall not
require either of the certifications contemplated by the second preceding
sentence in connection with providing any information pursuant to this
<PAGE>
-84-
Section 3.15 that has previously been made available via the Trustee's internet
website or has previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to the
Trustee, the 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 Trustee, the Master Servicer, the Special Servicer and the Underwriters
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.
(b) The Trustee will make available each month, to any interested party,
the Distribution Date Statement via the Trustee's internet website, electronic
bulletin board and fax-on-demand service. In addition, pursuant to the terms of
one or more written agreements (each an "Internet Disclosure Agreement") that
may be entered into after the date hereof, between the Depositor on the one hand
and the Trustee or the Master Servicer on the other hand, the Trustee or the
Master Servicer, as the case may be, may make available certain information,
reports and documents with respect to the Mortgage Loans and the transactions
contemplated hereby, including, without limitation, the CSSA Loan File Report,
and the reports contemplated by Section 3.12(c), on the Trustee's or the Master
Servicer's internet website. None of the Depositor, the Master Servicer or the
Trustee possesses any obligation to enter an Internet Disclosure Agreement. The
Trustee and the Master Servicer will not post or disclose information, reports,
data files or documents with respect to the Mortgage Loans and the transactions
contemplated hereby unless it is expressly permitted to post such information
pursuant to the terms hereof or pursuant to the terms of an Internet Disclosure
Agreement. Provided that the each of the Master Servicer, the Special Servicer
and the Trustee prepare and disseminate all information and reports pursuant to
the terms of this Agreement, none of the Master Servicer, the Special Servicer
or the Trustee shall be liable for the dissemination of such information or
reports.
If three or more Holders (hereinafter referred to as "Applicants" with a
single Person which (together with its Affiliates) is the Holder of more than
one Class of Certificates being viewed as a single Applicant for these purposes)
apply in writing to the Trustee, and such application states that the
Applicants' desire to communicate with other Holders with respect to their
rights under this Agreement or under the Certificates and is accompanied by a
copy of the communication which such Applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such application,
send, at the Applicants'
<PAGE>
-85-
expense, the written communication proffered by the Applicants to all
Certificateholders at their addresses as they appear in the Certificate
Register.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third year following the calendar year
in which 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 end of such third succeeding calendar year, and is
granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, the Special Servicer and the Master Servicer,
to the effect that the holding by REMIC I of such REO Property subsequent to the
end of such third succeeding calendar year will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) of
any 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 written 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.
<PAGE>
-86-
(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 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 an amount sufficient to cover such items
to be incurred during the following twelve month period with respect to each
such REO Property.
(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
<PAGE>
-87-
commercially reasonable) 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 and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to the
REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and to the extent commercially reasonable, estimates of
the amount of income from each such source. Within a reasonable period of
time after receipt of such plan, the REMIC Administrator shall consult with
the Special Servicer and shall advise the Special Servicer of the REMIC
Administrator's federal income tax reporting position with respect to the
various sources of income that the Trust Fund would derive under the
Proposed Plan. In addition, the REMIC Administrator shall (to the maximum
extent possible) advise the Special Servicer of the estimated amount of
taxes that the Trust Fund would be required to pay with respect to each
such source of income. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and operate
such property in a manner that would not result in the imposition of an REO
Tax on the income derived from such property. All of the REMIC
Administrator's expenses (including any fees and expenses of counsel or
other experts reasonably retained by it) incurred pursuant to this section
shall be reimbursed to it from the Trust Fund in accordance with Section
10.01(f).
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard. 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.
(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, except as contemplated by Section
3.17(a), either result in the receipt by REMIC I, REMIC II or REMIC III of any
"income from nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of
the Code 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,
<PAGE>
-88-
funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in clauses (i) - (iv) above
with respect to such REO Property, the Special Servicer shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officers' Certificate delivered to the Trustee and the Master Servicer)
the Special Servicer would not make such advances if the Special Servicer owned
such REO Property or the Special Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust Fund) shall be reasonable and customary in consideration of
the nature and locality of the REO Property;
(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 1.856-4(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;
<PAGE>
-89-
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Sections 2.03(a),
2.02(b) and 9.01.
(b) Subject to Sections 2.03(a) and 2.02(b), 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
<PAGE>
-90-
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 Certificateholders.
Such offer shall be made in a commercially reasonable manner (which, for
purposes hereof, includes an offer to sell without representation or warranty
other than customary warranties of title and condition, if liability for breach
thereof is limited to recourse against the Trust Fund) for a period of not less
than 10 days. Unless the Special Servicer determines that acceptance of any bid
would not be in the best economic interests of the Certificateholders, 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.
(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. Where any Interested Person is among those
<PAGE>
-91-
bidding with respect to a Mortgage Loan or REO Property, the Special Servicer
shall require that all bids be submitted in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person or
from an Interested Person other than the Special Servicer constitutes a fair
price for any such Mortgage Loan or REO Property, the Special Servicer shall
take into account (in addition to the results of any appraisal described above
and any appraisal that it may have obtained pursuant to Section 3.09(a)), and
any appraiser or other expert in real estate matters shall be instructed to take
into account, as applicable, among other factors, the period and amount of any
delinquency on the affected Mortgage Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or
REO Property shall in all cases be deemed a fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee for the benefit of the Trust Fund 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 of title
and condition, unless liability for breach thereof is limited to recourse
against the Trust Fund, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer.
(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).
<PAGE>
-92-
SECTION 3.19. Additional Obligations of Master Servicer.
(a) 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 (exclusive of any Prepayment Interest Excess) during such Collection
Period.
(b) With respect to each Construction Loan, the Master Servicer will on the
due dates specified in the related Mortgage Note withdraw from the applicable
Reserve Account and deposit into the Collection Account the amounts due under
such Mortgage Note to the extent of Reserve Funds remaining in such Reserve
Account in respect of such Construction Loan for so long as the related Tenant
is not obligated to begin making payments under the related Credit Lease. Prior
to the Construction Loan Default Date, the Master Servicer will remit any
amounts due to any Person entitled thereto under the related Mortgage Loan
documents from any remaining Construction Reserves related to such Person upon
the delivery of such documents and the satisfaction of such other conditions
specified in the related Mortgage Loan documents. On or before each Construction
Loan Default Date, the Master Servicer will determine whether the related Tenant
or Mortgagor has satisfied all conditions specified in the related Credit Lease
and related Mortgage Loan documents (including the delivery of any
certifications and reports). In the event the related Tenant or Mortgagor has
not satisfied such conditions precedent, consistent with the Servicing Standard
and after consultation with any engineering or architectural consultants, that
the Master Servicer may deem appropriate (and the expense of which shall be a
Servicing Advance), the Master Servicer shall determine whether to extend the
time by which such conditions precedent must be satisfied for a period of time
of up to 90 days beyond the Construction Loan Default Date or to treat such
Mortgage Loan as a Defaulted Mortgage Loan; provided that such 90 day time
period may be further extended by the Master Servicer to a date determined by
the Master Servicer based upon the Servicing Standard and any reports provided
by engineering or architectural consultants, and upon the prior written
confirmation from each Rating Agency that such extension would not result in a
downgrade, qualification or withdrawal on the Certificates. In no event will the
Master Servicer extend the completion date pursuant to this Section 3.19(b) with
respect to the Construction Loan relating to the Fleet Letter of Credit beyond a
date that provides sufficient time for the Master Servicer to draw upon the
Fleet Letter of Credit in accordance with its terms or otherwise take any action
that impairs the enforceability or collectability of the Fleet Letter of Credit.
In the event the Construction Loan relating to the Fleet Letter of Credit is not
completed as specified in the related Credit Lease and related documents by the
Construction Default Date or such later date as extended by the Master Servicer
pursuant to this Section 3.19(b), the Master Servicer will draw upon the Fleet
Letter of Credit in accordance with its terms and in a timely manner such that
the Trust Fund can fully collect upon the Fleet Letter of Credit and deposit all
<PAGE>
-93-
collections received on the Fleet Letter of Credit into the Certificate Account
pursuant to Section 3.04(a)(xv).
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 for the benefit of the Trust Fund, agree to any
modification, waiver or amendment of any term of any Mortgage Loan without the
consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan shall be
in writing and shall be considered and effected in accordance with the Servicing
Standard.
(c) Except as provided in 3.20(d) and the last sentence of Section 3.02(a),
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
would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums, but excluding
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or permit a Principal Prepayment during any period in
which the related Mortgage Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released;
(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; or
(v) impair the value or enforceability of a Lease Enhancement Policy,
RVI Policy or the Fleet Letter of Credit.
(d) Notwithstanding Section 3.20(c), but subject to the third paragraph of
this Section 3.20(d), the Special Servicer may (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest or any Prepayment Premium, (ii) reduce the amount of the monthly
payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially
<PAGE>
-94-
Serviced Mortgage Loan or (iv) accept a principal prepayment on any Specially
Serviced Mortgage Loan during any Lockout Period; provided that (A) the related
Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or,
in the judgment of the Special Servicer, such default is reasonably foreseeable,
(B) in the sole, good faith judgment of the Special Servicer, such modification
would increase the recovery on the Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate) and (C) such modification, waiver or amendment would not both (1) effect
an exchange or reissuance of the Mortgage Loan under Section 1001 of the Code
(and the Treasury regulations promulgated thereunder) and (2) cause REMIC I,
REMIC II or REMIC III to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), the Special Servicer may extend the date on
which any Balloon Payment is scheduled to be due in respect of a Specially
Serviced Mortgage Loan if the conditions set forth in the proviso to the prior
paragraph are satisfied, the Special Servicer has obtained an appraisal within
the twelve months preceding such extension 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 (B) of
the proviso to the immediately preceding paragraph, and if such Balloon Loan is
an Insured Balloon Loan, that such extension will not impair the value or
enforceability of the related RVI Policy.
In no event will the Special Servicer (i) extend the maturity date of a
Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of any Mortgage Loan which has
a Mortgage Rate below the prevailing interest rate for comparable loans at the
time of such modification as determined by the Special Servicer, unless (A) such
Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make
the Balloon Payment at its scheduled maturity and (C) such Balloon Loan is not a
Specially Serviced Mortgage Loan (other than by reason of the failure to make
its Balloon Payment) and has not been delinquent with respect to a Periodic
Payment (other than the Balloon Payment) in the preceding twelve months, in
which case the Special Servicer may permit up to three one-year extensions at
the existing Mortgage Rate for such Mortgage Loan (provided that such limitation
of extensions made at below market rate shall not limit the ability of the
Special Servicer to extend the maturity date of any Mortgage Loan at an interest
rate at or in excess to the prevailing rate for comparable loans at the time of
such modification), (iii) if the Mortgage Loan is secured by a Ground Lease,
extend the maturity date of such Mortgage Loan beyond a date which is less than
10 years prior to the expiration of the term of such Ground Lease; (iv) reduce
the Mortgage Rate to a rate below the prevailing interest rate for comparable
loans at the time of such modification, as determined by the Special Servicer;
or (v) defer interest due on any Mortgage Loan in excess of 10% of the Stated
Principal Balance of such Mortgage Loan or defer the collection of interest on
any Mortgage Loan without accruing interest on such deferred interest at a rate
at least equal to the Mortgage Rate of such Mortgage Loan.
<PAGE>
-95-
The determination of the Special Servicer contemplated by clause (B) of the
proviso to the first paragraph, and clause (ii) of the third 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 costs otherwise collectible
under the terms of the related Mortgage Note and this Agreement 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) 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.
(h) If, with respect to any Defeasance Loan, the Master Servicer shall
receive a notice from the related Mortgagor that it intends to defease the
related Defeasance Loan in accordance with the terms thereof, except as set
forth below, the Master Servicer shall (a) promptly respond to such notice in a
manner which would require that the Mortgagor pledge Defeasance Collateral in
lieu of such prepayment pursuant to the terms of the related Mortgage Note, (b)
notify each Rating Agency, the Trustee and the Underwriters in writing of the
request to defease a Mortgage Loan and (c) upon the written confirmation from
each Rating Agency described in the next paragraph, take such further action as
provided in such Mortgage Note to effectuate such pledge, including the purchase
and perfection of the Defeasance Collateral in the name of the Trustee, as
trustee for the registered holders of
<PAGE>
-96-
Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1998-C1-CTL.
Notwithstanding the above and subject to the terms of the Mortgage Loans,
the Master Servicer shall not permit a pledge of Defeasance Collateral in lieu
of prepayment under a Defeasance Loan if (i) such defeasance would occur within
two years of the Startup Day, (ii) such Defeasance Loan (or any applicable
agreement executed in connection with the related defeasance) provides that the
Mortgagor will be liable for any shortfalls from the Defeasance Collateral or
otherwise become subjected to recourse liability with respect to the Defeasance
Loan, (iii) such defeasance would result in a new Mortgagor on the Defeasance
Loan (unless such new Mortgagor is acquiring the Mortgaged Property that was the
initial security for the Defeasance Loan), or (iv) any Rating Agency does not
confirm in writing to the Master Servicer that the acceptance of a pledge of the
Defeasance Collateral in lieu of a full prepayment will not result in a
downgrade, withdrawal or qualification of the ratings then assigned by it to any
Class of Certificates.
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
<PAGE>
-97-
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer (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 (xiii) of Section 4.02(a) and, insofar as it relates to
the Special Servicer, the information described in clauses (xxiii) and (xxiv) 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
<PAGE>
-98-
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, the Trust Fund, any successor Master
Servicer or Special Servicer, as the case may be, or any Certificateholder shall
have any duties under such agreement or any liabilities arising therefrom; (iv)
permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate
such agreement with respect to such purchased Mortgage Loan at its option and
without penalty, (v) does not permit the Sub-Servicer to enter into or consent
to any modification, waiver or amendment or otherwise take any action on behalf
of the Special Servicer contemplated by Section 3.20 hereof without the consent
of such Special Servicer, and (vi) does not permit the Sub-Servicer any rights
of indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall 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, as the case may be, 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
<PAGE>
-99-
in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer 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, Warranties and Covenants of Master Servicer
and Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a corporation, duly organized and in good
standing under the laws of the State of California, 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
<PAGE>
-100-
incorporation or by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, 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 Special
Servicer's knowledge, threatened, against the Master Servicer the outcome
of which in the Master Servicer's good faith and reasonable judgment could
reasonably be expected to 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 the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) No consent, approval, authorization or order, 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 of
or compliance by the Master Servicer with this Agreement, or the
consummation by the Master Servicer of any transaction contemplated hereby,
other than (1) such consents, approvals, authorizations, qualifications,
registrations, filings, or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Master Servicer under this Agreement.
<PAGE>
-101-
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(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 corporation organized and validly
existing and in good standing under the laws of the State of California,
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
articles of incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Special Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened, against the Special Servicer the outcome of which in
the Special Servicer's good faith and reasonable judgment could reasonably
be expected
<PAGE>
-102-
to 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.
(vii) No consent, approval, authorization or order, 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 of
or compliance by the Special Servicer with this Agreement, or the
consummation by the Special Servicer of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings, or notices as have been obtained or
made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Special Servicer under this
Agreement.
(viii) The Special Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(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.
(d) The Master Servicer covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Master Servicer
and used by the Master Servicer in the course of the operation or management of,
or the compiling, reporting or generation of data required by this Agreement
will not contain any deficiency (x) in the ability of such software or hardware
to identify correctly or perform calculations or other processing with respect
to dates after August 31, 1999 or (y) that would cause such software or hardware
to be fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000
(e) The Special Servicer covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Special Servicer
and used by the Special Servicer in the course of the operation or management
of, or the compiling, reporting or generation of data required by this Agreement
will not contain any deficiency (x) in the ability of such software or hardware
to identify correctly or perform calculations or other processing with respect
to dates after August 31, 1999 or (y) that would cause such software or hardware
to be fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000.
<PAGE>
-103-
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), 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 (viii), 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-PO
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-PO Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Class A-PO Principal Distribution
Amount for such Distribution Date;
(iii) to distributions of principal to the Holders of the Class A-1
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-1 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount less
the Class A-PO Principal Distribution Amount for such Distribution Date;
(iv) 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 and net of
the Class A-PO Principal Distribution Amount distributed on such
Distribution Date to the Holders of the Class A-PO Certificates pursuant to
clauses (ii) and (iii) above;
(v) after the Class Principal Balance of the Class A-1 Certificates
and the Class A-2 Certificates have been reduced to zero, to distributions
of principal to the Holders of the Class 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
<PAGE>
-104-
distributed on such Distribution Date to the Holders of the Class A-1 and
Class A-2 Certificates and net of the Class A-PO Principal Distribution
Amount distributed on such Distribution Date to the Holders of the Class
A-PO Certificates pursuant to clauses (ii), (iii) and (iv) above;
(vi) to distributions to the Holders of the Class A-PO Certificates,
the Class A-1 Certificates, the Class A-2 Certificates and the Class A-3
Certificates, pro rata, in accordance with the outstanding Class Principal
Balances of each such Classes of Certificates in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to such Classes of Certificates and not
previously reimbursed;
(vii) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(viii) after the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates and the 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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(ix) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class B
Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date, and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) 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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
<PAGE>
-105-
(xii) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class C
Certificates and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xiv) 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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(xv) to distributions to the Holders of the Class D Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class D
Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xvii) 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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(xviii) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class E
Certificates and not previously reimbursed;
<PAGE>
-106-
(xix) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xx) 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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(xxi) to distributions to the Holders of the Class F Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiii) 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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(xxiv) to distributions to the Holders of the Class G Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class G
Certificates and not previously reimbursed;
(xxv) 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;
(xxvi) 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
<PAGE>
-107-
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 less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(xxvii) to distributions to the Holders of the Class H Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class H
Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class J Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxix) after the Class Principal Balance of the Class H Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class J Certificates, in an amount (not to exceed the Class Principal
Balance of the Class J Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
(xxx) to distributions to the Holders of the Class J Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class J
Certificates and not previously reimbursed;
(xxxi) to distributions of interest to the Holders of Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class K Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxii) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, in an amount (not to exceed the Class Principal
Balance of the Class K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date less any portion thereof and less the Class A-PO
Principal Distribution Amount distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a);
<PAGE>
-108-
(xxxiii) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class K
Certificates and not previously reimbursed; and
(xxxiv) 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 (xxxiii)
above.
In preparing its reports described in this Section 4.01(a), the Trustee may
rely solely on information provided by the Master Servicer and the Special
Servicer.
(b) On each Distribution Date, the Paying Agent shall withdraw from the
Distribution Account any amount on deposit therein that represents Prepayment
Premiums actually collected on the Mortgage Loans and any REO Loans during the
related Collection Period and shall distribute such amount, as additional
interest, as follows: Until the aggregate Certificate Principal Balance of the
Sequential Pay Certificates (other than the Class A-PO Certificates) has been
reduced to zero, to the Holders of the Sequential Pay Certificates (other than
the Class A-PO Certificates), in the case of each Class thereof, in an amount
equal to the amount of each such Prepayment Premium, multiplied by (a) a
fraction (which in no event may be greater than one) the numerator of which is
equal to the excess, if any, of the Pass-Through Rate of such Class of
Sequential Pay Certificates over the relevant Discount Rate (as defined below),
and the denominator of which is equal to the excess, if any, of the Mortgage
Rate of the prepaid Mortgage Loan over the relevant Discount Rate, and (b) a
fraction, the numerator of which is equal to the amount of principal
distributable on such Class of Sequential Pay Certificates on such Distribution
Date, and the denominator of which is the Principal Distribution Amount (net of
the Class A-PO Principal Distribution Amount) for such Distribution Date. The
portion, if any, of the Prepayment Premium remaining after any such payments to
the Holders of the Sequential Pay Certificates (other than the Class A-PO
Certificates) will be distributed to the Holders of the Class IO Certificates.
The Class A-PO Certificates will not be entitled to any distributions of
Prepayment Premiums. The "Discount Rate" applicable to any Class of Sequential
Pay Certificates (other than the Class A-PO Certificates) will be equal to the
yield (when compounded monthly) on the U.S. Treasury issue (primary issue) with
a maturity date closest to the maturity date for the prepaid Mortgage Loan. In
the event that there are two such U.S. Treasury issues (a) with the same coupon,
the issue with the lower yield will be utilized, and (b) with maturity dates
equally close to the maturity date for the prepaid Mortgage Loan, the issue with
the earliest maturity date will be utilized.
(c) [Reserved].
(d) 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
<PAGE>
-109-
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 Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates) or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Certificate) will be made in like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto, which reimbursement is to occur after
the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the Paying
Agent was subsequently notified in writing. If such check is returned to the
Paying Agent, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Paying Agent has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Paying Agent shall, to the extent it is not
required to dispose of such unclaimed funds otherwise in accordance with
applicable state escheatment law, distribute the unclaimed funds to the Class
R-I Certificateholder.
(e) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under the Letter of Representations
among the Depositor, the Trustee and the initial Depository.
<PAGE>
-110-
(f) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of the Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the Paying Agent
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than five days after the related Determination Date, mail to
each Holder of record on such date of such Class of Certificates a notice to the
effect that:
(i) the Paying Agent expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the office of
the Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after such
Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the first anniversary following
delivery of the second notice, the Paying Agent shall dispose of all unclaimed
funds and other assets in accordance with applicable state law.
(h) Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably
<PAGE>
-111-
believes are applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. If the Paying Agent does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Paying
Agent shall indicate the amount withheld to such Certificateholders.
(i) 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 each component 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 the REMIC II Regular
Interest corresponding to the Class of Certificates having the same alphabetical
and numerical (if any) designation as such Component to the extent of one
month's interest accrued at a rate equal to the Pass-Through Rate for such
Component on the Uncertificated Principal Balance of such REMIC II Regular
Interest immediately prior to such Distribution Date.
(j) 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 all of the REMIC
I Regular Interests other than the REMIC I PO Regular Interest, in an
amount equal to, and pro rata in accordance with, all Uncertificated
Distributable Interest in respect of each such REMIC I Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the REMIC I
Non-Discount Regular Interests, in an amount equal to, and pro rata in
accordance with, as to each such REMIC I Non-Discount Regular Interest, the
excess, if any, of the Uncertificated Principal Balance of such REMIC I
Non-Discount Regular Interest outstanding immediately prior to such
Distribution Date, over the Stated Principal Balance of the related
Non-Discount Mortgage Loan (or successor REO Loan) that will be outstanding
immediately following such Distribution Date;
(iii) as deemed distributions of principal in respect of the REMIC I
Discount Regular Interests, in an amount equal to, and pro rata in
accordance with, as to each such REMIC I Discount Regular Interest, the
excess, if any, of the Uncertificated Principal Balance of such REMIC I
Discount Regular Interest
<PAGE>
-112-
immediately prior to such Distribution Date, over the product of (a) the
Stated Principal Balance of the related Discount Mortgage Loan (or
successor REO Loan) that will be outstanding immediately following such
Distribution Date, and (b) the difference between 1.0 and the Class A-PO
Fraction for such Discount Mortgage Loan;
(iv) as deemed distributions of principal in respect of the REMIC I PO
Regular Interest, in an amount equal to, and pro rata in accordance with,
the excess, if any, of the Uncertificated Principal Balance of the REMIC I
PO Regular Interest immediately prior to such Distribution Date, over the
aggregate of the respective products of (a) the Stated Principal Balance of
each Discount Mortgage Loan (or successor REO Loan) that will be
outstanding immediately following such Distribution Date, and (b) Class
A-PO Fraction for such Discount Mortgage Loan; and
(v) as deemed distributions in respect of the REMIC I Regular
Interests, in an amount equal to, pro rata in accordance with, and in
reimbursement of Realized Losses and Additional Trust Fund Expenses (with
compounded interest), previously allocated to each such REMIC I Regular
Interest.
Any Prepayment Premium distributed to any Class of Certificates on any
Distribution Date shall, in each case, be deemed to have been distributed from
REMIC I to REMIC II in respect of the REMIC I Regular Interest corresponding to
the prepaid Mortgage Loan or REO Loan, as the case may be, in respect of which
such premium was received.
SECTION 4.02. Statements to Certificateholders; CSSA Loan File Report.
(a) On each Distribution Date, the Trustee shall forward by mail (or by
electronic transmission acceptable to the recipient) to all of the Holders of
each Class of Regular Certificates, a statement (a "Distribution Date
Statement"), as to the distributions made on such Distribution Date, setting
forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates in reduction of the Class
Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates allocable to Distributable
Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates allocable to Prepayment
Premiums;
<PAGE>
-113-
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in respect of such
Distribution Date pursuant to Section 4.03(a), 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, the Trustee
in respect of such unreimbursed P&I Advances in accordance with Section
4.03(d) as of the close of business on the related Determination Date, (b)
the aggregate amount of Servicing Advances as of the close of business on
the related Determination Date and (c) the aggregate amount of Protective
Advances and Nonrecoverable Protective 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 30-59 days, (B) delinquent 60-89 days, (C) delinquent more than
89 days, 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, and (C) a brief
description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the aggregate of all Liquidation
Proceeds and other amounts received in connection with such Liquidation
Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Realized Loss
in connection with such
<PAGE>
-114-
Liquidation Event;
(xiii) 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)
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
(C) the amount of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Certificates for such
Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect of each
Class of Regular Certificates after giving effect to the distributions made
on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of Regular Certificates for
such Distribution Date;
(xvii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
received during the related Collection Period, the loan number for the
related Mortgage Loan and the amount of such prepayment or other collection
of principal);
(xviii) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that were allocated on such Distribution Date;
(xix) 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;
(xx) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xxi) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee during the related Collection Period in
accordance with Section 4.03(d);
<PAGE>
-115-
(xxii) 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(e);
(xxiii) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer during the related Collection Period;
(xxiv) the amounts, if any, actually distributed with respect to the
Class R-I, the Class R-II and the Class R-III Certificates on such
Distribution Date; and
(xxv) with respect to each Tenant and any Guarantor as of a date no
earlier than three Business Days prior to such Determination Date as
determined by the Master Servicer: (i) all publicly available ratings for
such Tenant and any Guarantor as of such date, (ii) all publicly available
ratings for such Tenant or Guarantor included in the report prepared by the
Master Servicer pursuant to Section 3.12(c) for the immediately preceding
Determination Date (or in the case of the first Determination Date, such
ratings set forth in the Prospectus on page S-39) and (iii) whether such
Tenant or Guarantor has been placed on a credit watch, in each case as
provided to the Trustee by the Master Servicer pursuant to Section 3.12(c).
In addition, each Distribution Date Statement shall for each of Moody's and
S&P include the information set forth on Exhibit T. In the case of information
to be furnished pursuant to clauses (i) through (iv) above, the amounts shall be
expressed as a dollar amount in the aggregate for all Certificates of each
applicable Class and per Single Certificate. In the case of information provided
to the Trustee as a basis for information to be furnished pursuant to clauses
(x) through (xiii), and (xxiv) above, insofar as the underlying information is
solely within the control of the Special Servicer, the Trustee and the Master
Servicer may, absent actual knowledge of an error (of, with respect to the
Trustee, a Responsible Officer without conducting any due diligence),
conclusively rely on the reports to be provided by the Special Servicer.
Absent manifest error, the Trustee may rely on and shall not be responsible
for the content or accuracy of any information provided by third parties for
purposes of preparing the Distribution Date Statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto). In preparing the Distribution
Date Statement pursuant to this Section 4.02(a) the Trustee shall base such
Distribution Date Statement solely on information provided to it by the Master
Servicer and the Special Servicer.
The Trustee shall deliver or shall cause to be delivered on each
Distribution Date by first class mail to each Certificateholder, the Depositor,
the Underwriters, each Rating Agency and any other Person designated in writing
by the Depositor (on diskette or via such other electronic medium as is mutually
acceptable to the Trustee and the recipient) a copy of the following reports or
in the case of reports to Persons designated in writing by the
<PAGE>
-116-
Depositor, any of the following reports delivered to it by the Master Servicer
pursuant to Section 3.12(c): (i) the Delinquent Loan Status Report, (ii) the
Historical Loss Estimate Report, (iii) the Historical Loan Modification Report,
(iv) the REO Status Report, and (v) a Loan Payoff Notification Report. The
Trustee shall prepare and deliver or shall cause to be delivered on each
Distribution Date by first class mail (or electronic transmission acceptable to
the recipient) to each Certificateholder, the Underwriters, the Depositor, the
Master Servicer, the Special Servicer, each Rating Agency and each other Person
that received a Distribution Date Statement on such Distribution Date a hard
copy (or in electronic medium acceptable to the recipient) of the CSSA Loan File
Report containing information regarding each Mortgaged Property as of the
Determination Date. The Trustee also shall deliver the CSSA Loan File Report
relating to any Distribution Date by electronic medium (including computer
diskette) to each Rating Agency and, upon written request, to either Underwriter
and to any Certificateholder or Certificate Owner entitled to receive a hard
copy thereof. Absent actual knowledge of an error, none of the Master Servicer,
the Special Servicer or the Trustee shall be responsible for the accuracy or
completeness of any information supplied to it by a borrower or third party that
is included in any reports, statements, materials or information prepared or
provided by the Master Servicer, the Special Servicer or the Trustee, as
applicable. The Trustee shall not be responsible absent manifest error for the
accuracy or completeness of any information supplied to it for delivery pursuant
to this Section. Neither the Trustee, the Master Servicer nor the Special
Servicer shall have any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor or third party.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall send to each Person who at any time during the calendar year was a
Certificateholder of record, a report summarizing on an annual basis (if
appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(i), (ii), (iii) and (iv) above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust. Such requirement shall be deemed to be satisfied to the extent such
information is provided pursuant to applicable requirements of the Code from
time to time in force.
On each Distribution Date, the Trustee shall forward 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.
If any Certificate Owner does not receive through the Depository or any of
its Depository Participants any of the statements, reports and/or other written
information described above in this Section 4.02(a) that it would otherwise be
entitled to receive if it were the Holder of a Definitive Certificate evidencing
its ownership interest in the related Class of Book Entry Certificates, then the
Trustee shall mail or cause the mailing of such statements, reports and/or other
written information to such Certificate Owner upon the request of such
Certificate Owner made in writing to the Corporate Trust Office (accompanied by
current verification of such Certificate Owner's ownership interest). Such
portion of such information
<PAGE>
-117-
as may be agreed upon by the Depositor and the Trustee shall be furnished to any
such Person via overnight courier delivery or telecopy from the Trustee;
provided that the cost of such overnight courier delivery or telecopy shall be
an expense of the party requesting such information.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by this Section 4.02(a) to the extent it receives the
necessary underlying information from the Special Servicer or the Master
Servicer, as applicable, and shall not be liable for any failure to deliver any
thereof on the prescribed due dates, to the extent caused by failure to receive
timely such underlying information. Nothing herein shall obligate the Trustee or
the Master Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
(b) Not later than 2:30 P.M. on the second Business Day following each
Determination Date the Master Servicer shall furnish to the Trustee, by
electronic transmission (or in such other form to which the Trustee, the
Underwriters or the Depositor, as the case may be, and the Master Servicer may
agree), with a hard copy of such transmitted information to follow not later
than the third Business Day following such Determination Date, an accurate and
complete CSSA Loan File Report providing the required information for the
Mortgage Loans as of such Determination Date. The Depositor shall provide the
information necessary to complete the CSSA setup file within ten Business Days
of the Closing Date. The Master Servicer may conclusively rely on the
information contained in the CSSA setup file prepared by the Depositor.
In the performance of its obligations set forth in Section 4.05 and its
other duties hereunder, the Trustee may conclusively rely on the CSSA Loan File
Report provided to it by the Master Servicer, and the Trustee shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information to be furnished by the Master
Servicer to the Trustee pursuant to this Section 4.02(b), insofar as such
information is solely within the control of the Special Servicer, the Master
Servicer shall have no obligation to provide such information until it has
received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CSSA Loan File Report caused by the
Special Servicer's failure to timely provide any report required under this
Agreement and may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer.
SECTION 4.03. P&I Advances.
(a) On each P&I Advance Date, the Master Servicer shall (i) apply amounts
held in the Certificate Account received after the Determination Date with
respect to the related Collection Period or for future distribution to
Certificateholders in subsequent months in discharge of its obligation to make
P&I Advances, or (ii) if such amounts are insufficient to discharge such
obligation, subject to Section 4.03(c) below, remit from its own funds to the
Paying Agent for deposit into the Distribution Account an amount equal to the
aggregate
<PAGE>
-118-
amount of P&I Advances, if any, to be made in respect of the related
Distribution Date. The Master Servicer may also make P&I Advances in the form of
any combination of clauses (i) and (ii) above aggregating the total amount of
P&I Advances to be made. Any amounts held in the Certificate Account for future
distribution and so used to make P&I Advances shall be appropriately reflected
in the Master Servicer's records and replaced by the Master Servicer by deposit
in the Certificate Account on or before the next succeeding 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 deposited in the Distribution Account the
Available Distributions Amount for the Next Distribution Date or 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 (215) 328-3478
(or such alternative number provided by the Master Servicer to the Trustee in
writing) and by telephone at telephone (215) 328-1790 (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 3:00 p.m., New York City time, on such P&I
Advance Date. If the Trustee does not receive the full amount of such P&I
Advances by 10:00 a.m., New York City time, on the related Distribution Date,
then, subject to Section 4.03(c), (i) the Trustee shall, no later than 11:00
a.m., New York City time, on such related Distribution Date make the portion of
such P&I Advances that was required to be, but was not, made by the Master
Servicer on such P&I Advance Date, and (ii) the provisions of Sections 7.01 and
7.02 shall apply. To the extent that the Master Servicer fails to remit funds
required to be remitted by it to the Trustee by the close of business on the
Business Day immediately preceding the Distribution Date, the Master Servicer
shall be required to compensate the Trustee in an amount agreed upon by the
Trustee and the Master Servicer.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
or the Trustee in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the sum of (x) the aggregate the Quarterly Pay Interest
Deposits in respect of the Quarterly Pay Loans minus the aggregate amount
withdrawn from the Quarterly Pay Interest Reserve Account for such Distribution
Date and (y) the aggregate of all Scheduled Payments (other than Balloon
Payments) and any Assumed Scheduled Payments, net of related Master Servicing
Fees and any related 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 Periodic 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,
<PAGE>
-119-
waiver or amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20, and the Periodic 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 Periodic
Payment due and owing after taking into account such reduction (net of related
Master Servicing Fees and any related Recovery Fees) in the event of subsequent
delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction
Amount exists with respect to any Required Appraisal Loan, then, with respect to
the Distribution Date immediately following the date of such determination and
with respect to each subsequent Distribution Date for so long as such Appraisal
Reduction Amount exists with respect to such Required Appraisal Loan, the Master
Servicer or the Trustee 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 (A) the amount of the P&I Advance that would otherwise be
required without regard to this clause (ii), multiplied by (B) 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.
(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 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, if available, engineers' reports, environmental
surveys and any similar reports that the Master Servicer may have obtained
consistent with the Servicing Standard and at the expense of the Trust Fund,
that support such determination by the Master Servicer. The Trustee shall be
entitled to rely, conclusively, on any determination by the Master Servicer that
a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect to a
P&I Advance, the Trustee, as applicable, shall rely on the Master Servicer's
determination that the P&I Advance would be a Nonrecoverable Advance if the
Trustee determines that it does not have sufficient time to make such
determination); provided, however, that if the Master Servicer has failed to
make a P&I Advance for reasons other than a determination by the Master Servicer
that such P&I Advance would be Nonrecoverable Advance, the Trustee shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee, in good faith, makes a determination prior to the times specified in
Section 4.03(a) that such P&I Advance would be a Nonrecoverable Advance. The
Trustee in determining whether or not a P&I Advance previously made is, or a
proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be
subject to the standards applicable to the Master Servicer hereunder.
(d) Except as set forth herein, in connection with the recovery by the
Master Servicer or the Trustee of any P&I Advance out of the Certificate Account
pursuant to Section
<PAGE>
-120-
3.05(a), the Master Servicer shall be entitled to pay itself and the Trustee out
of any amounts then on deposit in the Certificate Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
P&I Advance from the date made to but not including the date of reimbursement.
The Master Servicer shall reimburse itself and the Trustee for any outstanding
P&I Advance in accordance with Section 3.05(a) as soon as practicable. The
Master Servicer shall reimburse itself or the Trustee, as applicable, for any
outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose have been received by the Master Servicer.
SECTION 4.04. Allocation of 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 Sequential Pay Certificates as follows the aggregate of
all Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-Off Date through the end of the related Collection
Period, and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate Certificate Principal Balance of the Sequential Pay 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 K, Class J,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates,
in that order, until the respective remaining Class Principal Balance of each
such Class has been reduced to zero and second, to the Class A-1, Class A-2 and
Class A-3 Certificates, pro rata, in accordance with the outstanding Certificate
Principal Balances of such Classes of Certificates, until the remaining Class
Principal Balance of each such Class has been reduced to zero; provided that in
the event any Realized Losses otherwise allocable to the Class A-1, Class A-2
and Class A-3 Certificates occurs with respect to a Discount Mortgage Loan, an
amount equal to the product of the Class A-PO Fraction for such Discount
Mortgage Loan and the amount of such Realized Loss shall be allocated to the
Class A-PO Certificates and the remainder shall be allocated pro rata to the
Class A-1, Class A-2 and Class A-3 Certificates and any Additional Trust Fund
Expenses will be allocated to the Class A-1, Class A-2, Class A-3 and Class A-PO
Certificates pro rata in proportion to their outstanding Class Principal
Balances. All Realized Losses and Additional Trust Fund Expenses, if any, that
have not been allocated to the Sequential Pay Certificates as of the
Distribution Date on which the aggregate Certificate Principal Balance of such
Certificates has been reduced to zero, shall be allocated to the Residual
Certificates.
(b) Each Realized Loss and Additional Trust Fund Expense, if any, allocated
to any Class of Sequential Pay Certificates on any Distribution Date shall be
deemed to have first been allocated to the corresponding Class of REMIC II
Regular Interest with a corresponding reduction in the Uncertificated Principal
Balance of such Class of REMIC II Regular Interest.
<PAGE>
-121-
(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Non-Discount Regular Interests pursuant to
Section 4.01(j), the Uncertificated Principal Balance of each REMIC I
Non-Discount Regular Interest (after taking account such deemed distributions)
shall be reduced to equal the Stated Principal Balance of the related
Non-Discount Mortgage Loan or REO Loan, as the case may be, that will be
outstanding immediately following such Distribution Date. Such reductions shall
be deemed to be an allocation of Realized Losses and Additional Trust Fund
Expenses.
(d) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Discount Regular Interests pursuant to Section
4.01(j), the Uncertificated Principal Balance of each REMIC I Discount Regular
Interest (after taking account of such deemed distributions) shall be reduced to
equal the product of (i) the Stated Principal Balance of the related Discount
Mortgage Loan or REO Loan, as the case may be, that will be outstanding
immediately following such Distribution Date and (ii) the difference between 1.0
and the Class A-PO Fraction for such Discount Mortgage Loan. Such reductions
shall be deemed to be an allocation of Realized Losses and Additional Trust Fund
Expenses.
(e) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I PO Regular Interest pursuant to Section 4.01(j),
the Uncertificated Principal Balance of the REMIC I PO Regular Interest (after
taking account of such deemed distributions) shall be reduced to equal the
aggregate of the products obtained by multiplying (i) the Stated Principal
Balance of each Discount Mortgage Loan or REO Loan, as the case may be, that
will be outstanding immediately following such Distribution Date by (ii) the
Class A-PO Fraction for such Discount Mortgage Loan. Such reductions shall be
deemed to be an allocation of Realized Losses and Additional Trust Fund
Expenses.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary information from
the Master Servicer and the Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions
and allocations to be made pursuant to Section 4.01, Section 5.02(d) and Article
IX and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Paying Agent shall
calculate the Available Distribution Amount for each Distribution Date and shall
allocate such amount among Certificateholders in accordance with this Agreement,
and the Paying Agent shall have no obligation to recompute, recalculate or
verify any information provided to it by the Special Servicer or Master
Servicer. The calculations by the Paying Agent of such amounts shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize agents or
attorneys-in-fact in performing any of its obligations under this Article IV
(except the obligation to make P&I Advances), but no such utilization shall
relieve the Master Servicer or the Trustee from any of such obligations, and the
Master Servicer or the Trustee, as
<PAGE>
-122-
applicable, shall remain responsible for all acts and omissions of any such
agent or attorney-in-fact (other than with respect to limited powers-of-attorney
delivered by the Trustee to the Master Servicer or Special Servicer pursuant to
Section 2.03(b) and 3.01(b), as applicable, in which case the Trustee shall have
no such responsibility). The Master Servicer or the Trustee shall have all the
limitations upon liability and all the indemnities for the actions and omissions
of any such agent or attorney-in-fact that it has for its own actions hereunder
pursuant to Article VI or Article VIII hereof, as applicable, and any such agent
or attorney-in-fact shall have the benefit of all the limitations upon
liability, if any, and all the indemnities provided to the Master Servicer under
Section 6.03 or to the Trustee under Sections 8.01, 8.02 and 8.05, as
applicable; provided that in no event shall any recovery from the Trust Fund be
in excess of that which would have been paid to the Master Servicer or the
Trustee, as applicable.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms attached
hereto as Exhibits A-1 through A-16; 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 F, Class G, Class H, Class J and Class K Certificates, and in each such
case in integral multiples of $1 in excess thereof. The Residual Certificates
will not have any Certificate Principal Balance or Certificate Notional Amount.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by the Certificate Registrar hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized 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
<PAGE>
-123-
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113), 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 (if the
Trustee is not the Certificate Registrar), the Special Servicer and the Master
Servicer, any other bank or trust company to act as Certificate Registrar under
such conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
trustee shall immediately succeed to its duties as Certificate Registrar. The
Depositor, the Trustee (if it is no longer the Certificate Registrar), the
Master Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. Upon written request of any
Certificateholder made for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Certificate Registrar shall promptly furnish such Certificateholder with a list
of the other Certificateholders of record identified in the Certificate Register
at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1 hereto, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit F-2 hereto or as Exhibit F-3 hereto; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts
<PAGE>
-124-
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and upon acquisition of such a Certificate shall be
deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
(c) No transfer of a Subordinated Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or the prohibited
transactions restrictions of Section 4975 of the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Subordinated
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan (including, without limitation, any insurance
company using assets in its general or separate account that may constitute
"plan assets" of a Plan); provided, that (i) such a transfer may be made to an
insurance company general account with respect to any Class of Subordinated
Certificates which is eligible for exemptive relief under Section III of
Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"), provided that the
proposed transferee certifies that the conditions of Sections I, III and IV of
PTE 95-60 are satisfied with respect to such transfer, and (ii) such a transfer
may be made with respect to a Class F, Class G, Class H, Class J or Class K
Certificate if the prospective transferee provides the Certificate Registrar
with a certification of facts and an Opinion of Counsel (upon which the
Certificate Registrar may conclusively rely) which establish to the satisfaction
of the Certificate Registrar that such transfer will not result in a violation
of Section 406 of ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code. As a condition to its
registration of the transfer of a Subordinated Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate to execute a certification affidavit in the form attached as Exhibit
G hereto.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (ii)(A) below to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
<PAGE>
-125-
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee, the Paying Agent and the Certificate
Registrar of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of a Residual
Certificate, the Certificate Registrar shall require delivery to it,
and shall not register the Transfer of any Residual Certificate until
its receipt of an affidavit and agreement substantially in the form
attached hereto as Exhibit H-1 (in any case, a "Transfer Affidavit and
Agreement"), from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, and upon which the
Certificate Registrar may, in the absence of actual knowledge by a
Responsible Officer of either the Trustee or the Certificate Registrar
to the contrary, conclusively rely, representing and warranting, among
other things, that such Transferee is a Permitted Transferee, that it
is not acquiring its Ownership Interest in the Residual Certificate
that is the subject of the proposed Transfer as a nominee, trustee or
agent for any Person that is not a Permitted Transferee, that for so
long as it retains its Ownership Interest in a Residual Certificate,
it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be bound
by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no
Transfer of a Residual Certificate to such proposed Transferee shall
be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an
<PAGE>
-126-
Ownership Interest in a Residual Certificate, if it is, or is holding
an Ownership Interest in a Residual Certificate on behalf of, a
"pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer or the Certificate
Registrar shall be under any liability to any Person for any registration
of Transfer of a Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d) and to
the extent that the retroactive restoration of the rights of the Holder of
such Residual Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, then the Certificate Registrar shall
have the right, but not the obligation, without notice to the Holder or any
prior Holder of such Residual Certificate, to sell such Residual
Certificate to a qualified purchaser selected by the REMIC Administrator on
such terms as the Certificate Registrar may choose. Such purported
Transferee shall promptly endorse and deliver such Residual Certificate in
accordance with the instructions of the Certificate Registrar. Such
purchaser may be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the Paying
Agent to such purported Transferee. The terms and conditions of any sale
under this clause (ii)(B) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be liable to
any Person having an Ownership Interest in a Residual Certificate as a
result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions any
information in its possession which is necessary to compute any tax imposed
(A) as a result of the Transfer of a Residual Certificate to any Person who
is a Disqualified Organization, including the information described in
Treasury Regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual Certificate and (B) as
a result of any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code
<PAGE>
-127-
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 REMIC Administrator 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 and the REMIC Administrator shall be responsible 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 Trustee 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 rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Certificate Registrar, obtained at the expense of the party
seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the
effect that doing so will not cause any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an
entity-level tax caused by the Transfer of any Residual Certificate to
a Person which is not 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.
<PAGE>
-128-
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the Master
Servicer, the Special Servicer and the Depositor notice of each transfer of a
Certificate and shall provide 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
<PAGE>
-129-
responsibilities with respect to a Class of the Book-Entry Certificates, and (B)
the Depositor is unable to locate a qualified successor, or (ii) the Depositor
at its option advises the Trustee and the Certificate Registrar in writing that
it elects to terminate the book-entry system through the Depository with respect
to a Class of Book-Entry Certificates, the Certificate Registrar shall notify
all affected Certificate Owners, through the Depository, of the occurrence of
any such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Book-Entry Certificates of any Class thereof by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Certificate Registrar shall execute, at the Depositor's expense,
and the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates in respect of such Class to the Certificate Owners identified in
such instructions. The Depositor shall provide the Certificate Registrar with an
adequate inventory of Definitive Certificates. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee 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
<PAGE>
-130-
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
agent of any of them shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master Servicer and
the Special Servicer shall each keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation, and each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The 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 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.
Notwithstanding anything else in this Section 6.02 and Section 6.04 to the
contrary, the Master Servicer and the Special Servicer may, upon the prior
written confirmation from each Rating Agency that the foregoing action will not
result in a downgrade, qualification or withdrawal of the ratings then-assigned
to each Class of Certificates, assign all of its rights and delegate all of its
duties and obligations under this
<PAGE>
-131-
Agreement; provided that the Person accepting such assignment or delegation
shall be a Person that is qualified to service multifamily mortgage loans on
behalf of FNMA or FHLMC, is reasonably satisfactory to the Trustee and the
Depositor, is willing to service the Mortgage Loans and executes and delivers to
the Depositor and the Trustee an agreement, in form and substance reasonably
satisfactory to the Depositor and the Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Master Servicer or the Special
Servicer, as the case may be, under this Agreement. In the case of any such
permitted assignment and delegation, the Master Servicer or the Special
Servicer, as the case may be, shall be released from its obligations under this
Agreement, except that the Master Servicer or the Special Servicer, as the case
may be, shall remain liable for all liabilities and obligations incurred by it,
or arising from its conduct, hereunder prior to the satisfaction of the
conditions to such assignment and delegation set forth in the preceding
sentence. Notwithstanding anything above to the contrary, each of the Master
Servicer and the Special Servicer may, in its sole discretion, appoint
Sub-Servicers in accordance with Section 3.22 hereof and independent contractors
or agents to perform select duties thereof, provided that the Master Servicer or
the Special Servicer shall not be relieved from such duties solely by virtue of
such appointment.
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer or any
of their directors, officers, employees or agents 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 willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. The Depositor,
the Master Servicer, the Special Servicer and any director, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer may rely in
good faith on any document of any kind which, prima facie, is properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor, the Master Servicer, the Special Servicer and any director, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
shall be indemnified and held harmless by the Trust Fund against any loss,
liability or reasonable expense incurred in connection with this Agreement or
the Certificates, other than any loss, liability or expense: (i) specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof; (ii) incurred in connection with any breach by such party of a
representation, warranty or covenant made herein; or (iii) incurred by reason of
willful misfeasance, bad faith or negligence on the part of such party in the
performance of obligations or duties hereunder. None of the Depositor, the
Master Servicer or the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action unless
<PAGE>
-132-
such action is related to its respective duties under this Agreement and, unless
it is specifically required hereunder to bear the costs of such legal action, in
its opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall constitute a Servicing Advance, and the
Depositor, the Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor from the Certificate Account as provided in Section 3.05. In
no event shall the Master Servicer or the Special Servicer be liable or
responsible for any action taken or omitted to be taken by the other of them or
by the Depositor, the Trustee or any Certificateholder, subject to the
provisions of the last paragraph of Section 8.05.
SECTION 6.04. Resignation of Master Servicer and the Special Servicer;
Assignment of Rights and Obligations.
The Master Servicer and, subject to Section 6.09, the Special Servicer
shall resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. Each of the Master Servicer and the
Special Servicer shall have the right to resign at any other time and to assign
its rights and obligations pursuant to this Agreement to a third party;
provided, that, with respect to the successor to either the Master Servicer or
the Special Servicer, (i) each of the Rating Agencies confirms in writing that
the successor's appointment or the assignment by the Master Servicer or Special
Servicer, as the case may be, will not result in a withdrawal, qualification or
downgrade of any rating or ratings assigned to any Class of Certificates,
(ii) the resigning or assigning party pays all costs and expenses in connection
with such transfer, (iii) the successor accepts appointment prior to the
effectiveness of such resignation; and (iv) in the event of assignment by the
Master Servicer to a third party, such third party satisfies all of the
requirements for a successor Master Servicer set forth in Section 7.02(a).
<PAGE>
-133-
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer
and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained thereby in respect of its rights and
obligations hereunder and access to officers thereof responsible for such
obligations. Upon reasonable request, each of the Master Servicer and, to the
extent relevant to the performance of the Special Servicer's duties hereunder,
the Special Servicer shall furnish the Depositor and the Trustee with its most
recent publicly available financial statements and such other information as it
possesses in respect of its performance of its rights and obligations hereunder.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer or Special Servicer hereunder or exercise the rights of the
Master Servicer and the Special Servicer hereunder; provided, however, that
neither the Master Servicer nor the Special Servicer shall be relieved of any of
its obligations hereunder by virtue of such performance by the Depositor or its
designee and, further provided, that the Depositor may not exercise any right
pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall each
furnish such reports, certifications and information as are reasonably requested
by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each furnish such
reports, certifications and information as are reasonably requested by the
Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each furnish such
reports, certifications and information as are reasonably requested by the
Special Servicer in order to enable it to perform its duties hereunder.
<PAGE>
-134-
SECTION 6.09. Designation of Special Servicer by the Controlling Class.
The Holder or Holders of the Certificates evidencing a majority of the
Voting Rights allocated to the Controlling Class may at any time and from time
to time designate a Person meeting the requirements set forth in Section 6.02 to
serve as Special Servicer hereunder and to replace any existing Special Servicer
or any Special Servicer that has resigned or otherwise ceased to serve as
Special Servicer by the delivery to the Trustee, the Master Servicer and the
existing Special Servicer of a written notice stating such designation.
Notwithstanding the foregoing, with respect to any Specially Serviced Mortgage
Loan in respect of which the Holder or Holders of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class owns an
economic interest in the related Mortgagor or is the lender of partnership debt
to the related Mortgagor (the "Interested Holders"), the Holder or Holders of
the Certificates evidencing a majority of the Voting Rights allocated to the
Class of Sequential Pay Certificates (which meets the criteria set forth in
clauses (a) and (b) of the definition of Controlling Class and the majority of
the Voting Rights allocated thereto are not held by Interested Holders) shall
appoint one or more Persons to act as alternative special servicer or
alternative special servicers (in each case meeting the requirements set forth
in Section 6.02) with respect to such Specially Serviced Mortgage Loans and vest
in such Person or Persons, in such capacity, such powers, duties and obligations
of the Special Servicer with respect to such Specially Serviced Mortgage Loans,
and such Holder or Holders shall give written notice of such appointment to the
Master Servicer, the Special Servicer and the Trustee. The Trustee shall,
promptly after receiving any such notice, deliver to the Rating Agencies an
executed Notice and Acknowledgment in the form attached hereto as Exhibit I-1.
Any costs or expenses incurred in connection with the replacement by such Holder
or Holders of any Special Servicer previously appointed by such Holder or
Holders, for which the circumstances of such replacement are other than those
resulting from the resignation or termination of the Special Servicer pursuant
to Sections 6.04 and 7.01, respectively, or the appointment of an alternative
special servicer shall be borne by the Controlling Class. If such Holders have
not replaced the Special Servicer within 30 days of such Special Servicer's
resignation or the date such Special Servicer has ceased to serve in such
capacity the Trustee shall utilize its best efforts to designate a successor
Special Servicer meeting the requirements set forth in Sections 6.02 and 7.02.
The designated Person shall become the Special Servicer on the date that the
Trustee shall have received written confirmation from all of the Rating Agencies
that the appointment of such Person will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates. The appointment of such designated Person as
Special Servicer shall also be subject to receipt by the Trustee of (1) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person and (ii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 6.09 and all other applicable provisions of this
Agreement, that upon the execution and delivery of the Acknowledgment of
Proposed Special Servicer the designated Person shall be bound by the terms of
this Agreement and that this Agreement shall be enforceable against the
designated Person in accordance with its terms (subject to customary bankruptcy
and insolvency qualifications). Any existing Special Servicer shall be deemed to
<PAGE>
-135-
have resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that the resigning or terminated Special
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, including,
without limitation, any Recovery Fee or proportionate share thereof, and it
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such resignation. Such resigning Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer within two Business Days to the replacement
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the REO Account
or delivered to the Master Servicer or that are thereafter received with respect
to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate with the same rights it would have (except as otherwise set forth in
the definition of "Certificateholder") if it were not the Master Servicer or the
Special Servicer or an Affiliate thereof. If, at any time during which the
Master Servicer or the Special Servicer or an Affiliate of the Master Servicer
or the Special Servicer is the Holder of (or, in the case of a Book-Entry
Certificate, Certificate Owner with respect to) any Certificate, the Master
Servicer or the Special Servicer proposes to take action (including for this
purpose, omitting to take action) that (i) is not expressly prohibited by the
terms hereof and would not, in the Master Servicer's or the Special Servicer's
good faith judgment, violate the Servicing Standard, and (ii) if taken, might
nonetheless, in the Master Servicer's or the Special Servicer's good faith
judgment, be considered by other Persons to violate the Servicing Standard, the
Master Servicer or the Special Servicer may (but need not) seek the approval of
the Certificateholders to such action by delivering to the Trustee a written
notice that (a) states that it is delivered pursuant to this Section 6.10, (b)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Master Servicer or the Special Servicer or an Affiliate of the
Master Servicer or the Special Servicer, and (c) describes in reasonable detail
the action that the Master Servicer or the Special Servicer proposes to take.
The Trustee, upon receipt of such notice, shall forward it to the
Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates) shall have failed to object in writing to the proposal described in
the written notice, 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
<PAGE>
-136-
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.
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 required to be so deposited or
distributed by it under this Agreement which failure remains unremedied by
11:00 a.m. New York City time on the relevant Distribution Date; 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 which failure continues unremedied for one
Business Day following the date on which such deposit is to be made; 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, 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 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 provided the Trustee with
an Officer's Certificate certifying that it has 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
<PAGE>
-137-
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 respect to any
breach 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 provided the Trustee with an Officer's Certificate
certifying that it 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 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.
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.
<PAGE>
-138-
(b) If any Event of Default described in clauses (i) - (vii) 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 (viii)
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 (except as set forth below) 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.
(c) The Master Servicer and the Special Servicer each agree that, if it is
terminated pursuant to Section 7.01(b), it shall promptly (and in any event no
later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, (i) in the case of the Master
Servicer, the transfer within two Business Days to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to the Certificate
Account, the Distribution Account or a Servicing Account (if the Master Servicer
is the Defaulting Party) or that are thereafter received by or on behalf of the
terminated Master Servicer with respect to any Mortgage Loan or (ii) in the case
of the Special Servicer, the transfer within two Business Days to the Trustee or
a successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to the
REO Account, the Certificate Account or a Servicing Account or delivered to the
Master Servicer (if the Special Servicer is the Defaulting Party) or that are
<PAGE>
-139-
thereafter received by or on behalf of the terminated Special Servicer with
respect to any Mortgage Loan or REO Property (provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to Section
7.01(b), continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination).
(d) Any cost or expenses in connection with any actions to be taken by the
Master Servicer or Special Servicer pursuant to Section 7.01(c) shall be borne
by the Defaulting Party and if not paid by the Defaulting Party within 90 days
after the presentation of reasonable documentation of such costs and expenses,
such expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. If and to the extent that the Defaulting Party has not reimbursed such
costs and expenses, the Trustee shall have an affirmative obligation to take all
reasonable actions to collect such expenses on behalf of and at the expense of
the Trust Fund. For purposes of this Section 7.01 and of Section 7.03(b), the
Trustee shall not be deemed to have knowledge of an event which constitutes, or
which with the passage of time or notice, or both, would constitute an Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless notice of any event which is in fact such an Event of Default is
received by a Responsible Officer of the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement. The Trustee shall be deemed to
have knowledge of any failure of the Master Servicer or the Special Servicer to
provide to the Trustee any scheduled reports, certificates or other documents
when required to be so provided by 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
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, including, without limitation, in
connection with any termination of the Master Servicer for an Event of Default
described in clause 7.01(a)(i), 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. Notwithstanding anything to the contrary in this Agreement, the
Trustee shall in no event be held responsible or liable with
<PAGE>
140-
respect to any of the representations and warranties of the resigning or
terminated party (other than the Trustee) or for any losses incurred by such
resigning or terminated party pursuant to Section 3.06 hereunder nor shall the
Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall, subject to paragraph (b) of this Section 7.02, 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 in its sole discretion to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, if the Trustee
is not approved as a Master Servicer or a Special Servicer, as the case may be,
by any of the Rating Agencies or if the Holders of Certificates entitled to at
least 51% of the Voting Rights so request in writing to the Trustee, promptly
appoint, subject to the approval of each of the Rating Agencies (as evidenced by
written confirmation therefrom to the effect that the appointment of such
institution would not cause the qualification, downgrading or withdrawal of the
then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02; provided, however, that
in the case of a resigning or terminated Special Servicer, such appointment
shall be subject to the rights of the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class to designate a
successor pursuant to Section 6.09. Except with respect to an appointment
provided below, no appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption of the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. Notwithstanding the above, the Trustee shall, if the
Master Servicer is the resigning or terminated party, and the Trustee is
prohibited by law or regulation from making P&I Advances, 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 the
then current 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
<PAGE>
-141-
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 five days after a Responsible Officer of the Trustee has
actual knowledge of or has received written notice of the occurrence of any
event which constitutes or, with notice or the lapse of time or both would
constitute an Event of Default, 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.
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) or (ii) 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 with respect to an Event of Default pursuant to Section
7.01(a)(viii) for which the sole remedy shall be the termination of the Master
Servicer (other than any obligations of the Master Servicer pursuant to Section
7.02) and 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. Except as expressly
provided in Article VIII, under no circumstances shall the rights provided to
the Trustee under this Section 7.05 be construed as a duty or obligation of the
Trustee.
<PAGE>
-142-
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II) to the extent specifically
set forth herein, shall examine them to determine whether they conform to the
requirements of this Agreement to the extent specifically set forth herein. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor or the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts if it was required to do so;
<PAGE>
-143-
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as Paying
Agent, Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01.
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and the 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; provided, however, that nothing
contained herein shall, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default which has not been cured, to exercise such of
the rights and powers vested in it by this Agreement, and to use the same degree
of care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
<PAGE>
-144-
(v) prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible for all
acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder;
(vii) the Trustee shall not be responsible for any act or omission of the
Master Servicer or the Special Servicer (unless the Trustee is acting as Master
Servicer or the Special Servicer) or the Depositor; and
(viii) Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer imposed under Article V under this Agreement or under
applicable law with respect to any transfer of any Certificate or any interest
therein, other than to require delivery of the certification(s) and/or Opinions
of Counsel described in said Article applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register and
to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates, other than the statements attributed
to the Trustee in Article II and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate. The Trustee
makes no representations as to the validity or sufficiency of this Agreement or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. The Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the
<PAGE>
-145-
Depositor in respect of the assignment of the Mortgage Loans to the Trust Fund,
or any funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
(except as otherwise provided in the definition of "Certificateholder") it would
have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the general
funds on deposit in the Distribution Account, prior to any distributions to be
made therefrom on such date, and pay to itself all earned but unpaid Trustee
Fees, as compensation for all services rendered by the Trustee in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder. The Trustee Fee 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 Principal Balance of the
Certificates. The Trustee 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, affiliate, agent or
"control" person within the meaning of the Securities Act of 1933 of the Trustee
shall be entitled to be indemnified for and held harmless by the Trust Fund
against any loss, liability or reasonable "out-of-pocket" expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement) arising out of,
or incurred in connection with this Agreement, the Mortgage Loans or the
Certificates ("Trustee Liability"); provided, that neither the Trustee nor any
of the other above specified Persons shall be entitled to indemnification
pursuant to this Section 8.05(b) for (1) any liability specifically required to
be borne thereby pursuant to the terms hereof, or (2) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or 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
<PAGE>
-146-
parties on the one hand and the Trustee on the other in connection with the
actions or omissions which resulted in such Trustee Liability, as well as any
other relevant equitable considerations.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a corporation
organized and doing business under the laws of the United States of America or
any State thereof or the District of Columbia, authorized under such laws to
exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
banking authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall also be an entity
with a credit rating of at least "AA" by each Rating Agency other than Moody's
and "Aa3" by Moody's or such other rating that shall not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates by any Rating Agency. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07; provided, that if the Trustee shall cease to
be so eligible because its combined capital and surplus is no longer at least
$100,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee proposes
to the other parties hereto to enter into an agreement with (and reasonably
acceptable to) each of them, and if in light of such agreement the Trustee's
continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) cause any Rating Agency to qualify, downgrade or withdraw any
rating assigned thereby to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is adversely affected thereby. The
corporation or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates.
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 at their respective
addresses set forth in the Certificate Registrar. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer 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 Master Servicer, the Special
Servicer, the Rating Agencies and the Certificateholders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the
<PAGE>
-147-
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 if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, or if the Trustee
shall fail, if the Trustee is the Paying Agent (other than by reason of the
failure of either the Master Servicer or the Special Servicer to timely perform
its obligations hereunder or as a result of other circumstances beyond the
Trustee's reasonable control), to timely deliver any current reports to be
delivered by the Trustee pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Paying Agent (if
different from the Trustee) fails to make distributions required pursuant to
Sections 3.05(b) or 4.01, then the Depositor may remove the Trustee and appoint
a successor trustee, if necessary, acceptable to the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee, if
necessary, by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor trustee so appointed. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer and the remaining Certificateholders by the successor so appointed. In
the event that the Trustee is terminated or removed pursuant to this Section
8.07, all of its rights and obligations under this Agreement and in and to the
Mortgage Loans shall be terminated, other than any rights or obligations that
accrued prior to the date of such termination or removal (including the right to
receive all fees, expenses and other amounts (including, without limitation, P&I
Advances and accrued interest thereon) accrued or owing to it under this
Agreement, with respect to periods prior to the date of such termination or
removal and no termination without cause shall be effective until the payment of
such amounts to the Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
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
<PAGE>
-148-
successor trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held on its behalf by a Custodian, which
Custodian shall become the agent of the successor trustee), and the Depositor,
the Master Servicer, the Special Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in the successor
trustee all such rights, powers, duties and obligations, and to enable the
successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08, unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, such successor trustee shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer or the Special 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, the Special Servicer and the Trustee may
consider necessary or desirable. If the Master Servicer or the Special 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 or the Special 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
<PAGE>
-149-
to Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. Neither the Master
Servicer nor the Special Servicer shall be liable for the actions or inaction of
any co-trustee.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall cease to exist, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more Custodians to
hold all or a portion of the Mortgage Files as agent for the Trustee. Each
Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor or any Affiliate
of the Depositor. Neither the Master Servicer nor the Special Servicer shall
have any duty to verify that any such Custodian is qualified to act as such in
accordance with the
<PAGE>
-150-
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 require that such notice, information or documents also be provided to the
Trustee. Any Custodian hereunder (other than the Trustee) shall at all times
maintain a fidelity bond and errors and omissions policy in amounts customary
for custodians performing duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents, which shall
be authorized to act on behalf of the Trustee in authenticating Certificates.
Each Authenticating Agent must be organized and doing business under the laws of
the United States of America or of any State, authorized under such laws to do a
trust business, have a combined capital and surplus of at least $15,000,000, and
be subject to supervision or examination by federal or state authorities. Each
Authenticating Agent shall be subject to the same obligations, standard of care,
protection and indemnities as would be imposed on, or would protect, the Trustee
hereunder. The initial Authenticating Agent shall be the Trustee.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Master
<PAGE>
-151-
Servicer, the Special Servicer and the Depositor. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, the Master Servicer, the Certificate
Registrar and the Depositor. Upon receiving a notice of resignation or upon such
a termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall given
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. No Authenticating Agent shall have responsibility
or liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. If the Paying Agent is not the
Trustee or the Master Servicer, the Trustee or the Master Servicer shall remit
to the Paying Agent on the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
a rating of at least "A" (or its equivalent) by each of DCR, Standard & Poor's
and Moody'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 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
<PAGE>
-152-
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of any Paying Agent to the extent
such Paying Agent would have been responsible pursuant to the terms hereof. The
initial Paying Agent shall be the Trustee. Notwithstanding anything herein to
the contrary, if the Trustee is no longer the Authenticating Agent, any
provision or requirement herein requiring notice or any information to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Trustee.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint one or more REMIC Administrators, which shall
be authorized to act on behalf of the Trustee in performing the functions set
forth in Sections 3.17 and 10.01 herein. Each REMIC Administrator must be
acceptable to the Trustee and must be organized and doing business under the
laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Paying Agent, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties 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
<PAGE>
-153-
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, Warranties and Covenants of Trustee.
(a) The Trustee hereby represents and warrants to the Master Servicer, the
Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Trustee, and the
performance and compliance with the terms of this Agreement by the Trustee, will
not violate the Trustee's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a material breach of, any material agreement or
other material instrument to which it is a party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in which
any part of the Trust Fund may be located require that a co-trustee or separate
trustee be appointed to act with respect to such property as contemplated by
Section 8.10, the Trustee has the full power and authority to carry on its
business as now being conducted and to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and adversely
the ability of the Trustee to perform its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Trustee's knowledge,
threatened against the Trustee that, if determined adversely to the Trustee,
would prohibit the Trustee from entering into this Agreement or, in the
Trustee's good faith and reasonable
<PAGE>
-154-
judgment, is likely to materially and adversely affect the ability of the
Trustee to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and performance
by the Trustee of or compliance by the Trustee with this Agreement or the
consummation of the transactions contemplated by this Agreement has been
obtained and is effective.
The Trustee covenants that by August 31, 1999, any custom-made software or
hardware designed or purchased or licensed by the Trustee and used by the
Trustee in the course of the operation or management of, or the compiling,
reporting or generation of data required by this Agreement will not contain any
deficiency (x) in the ability of such software or hardware to identify correctly
or perform calculations or other processing with respect to dates after August
31, 1999 or (y) that would cause such software or hardware to be fit no longer
for the purpose for which it was intended by reason of the changing of the date
from 1999 to 2000.
SECTION 8.17. Reports to the Securities and Exchange Commission; Available
Information.
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. Upon such filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor and the Master Servicer a copy
of any such executed report, statement or information. The Depositor shall
promptly file, and exercise its reasonable best efforts to obtain a favorable
response to, no-action requests to, or requests for other appropriate exemptive
relief from, the Securities and Exchange Commission regarding the usual and
customary exemption from certain reporting requirements granted to issuers of
securities similar to the Certificates. The Depositor agrees to indemnify and
hold harmless the Trustee with respect to any liability, cost or expenses,
including reasonable attorneys' fees, arising from the Trustee's execution of
such reports, statements and information that contain errors or omissions or is
otherwise misleading, provided, however, that if the indemnification provided
for herein is invalid or unenforceable, then the Depositor shall contribute to
the amount paid by the Trustee as a result of such liability in such amount as
is necessary to limit the Trustee's responsibility for any such payment to any
amount resulting from its own negligence or willful misconduct. The Trustee
shall have no responsibility to determine whether or not any filing may be
required and shall not have any responsibility to review or confirm in any way
the accuracy or the sufficiency of the contents of any such filing.
<PAGE>
-155-
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, the Master Servicer or
the Special Servicer of all Mortgage Loans and each REO Property remaining in
REMIC I at a price equal to (1) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus (2) the appraised value of each REO Property, if
any, included in REMIC I, such appraisal to be conducted by an Independent
Appraiser selected by the Master Servicer and approved by the Trustee, minus (3)
if the purchaser is the Master Servicer or the Special Servicer, the aggregate
amount of unreimbursed Advances made by the Master Servicer or the Special
Servicer, as the case may be, together with any interest accrued and payable to
the Master Servicer or the Special Servicer in respect of unreimbursed Advances
in accordance with Sections 3.03(e) and 4.03(d) and any unpaid Servicing Fees
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer or the Special Servicer, as the case may be,
in connection with such purchase), and (B) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in REMIC I, and (ii) to the Trustee, the Master Servicer,
the Special Servicer and the officers, directors, employees and agents of each
of them of all amounts which may have become due and owing to any of them
hereunder; provided, however, that in no event shall the trust created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Joseph P. Kennedy, the late ambassador
of the United States to the Court of St. James, living on the date hereof, or
(ii) the Rated Final Distribution Date specified in Section 10.01(e).
The Depositor, the Master Servicer or the Special Servicer may at its
option elect to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I as contemplated by clause (i) of the preceding paragraph by
giving written notice to the other parties hereto no later than 60 days prior to
the anticipated date of purchase; provided, however, that (i) the aggregate
Stated Principal Balance of the Mortgage Pool at the time of such election is
less than 1% of the aggregate Cut-Off Date Balance of the Mortgage Pool set
forth in the Preliminary Statement, and (ii) the Master Servicer shall not have
the right to effect such a purchase if, within 30 days following the Master
Servicer's delivery of a notice of election pursuant to this paragraph, the
Depositor shall give notice of its election to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I and shall thereafter effect
such purchase in accordance with the terms hereof. If the Trust Fund is to be
terminated in connection with the Master Servicer's or the Depositor's purchase
of all of the
<PAGE>
-156-
Mortgage Loans and each REO Property remaining in REMIC I, the Master Servicer
or the Depositor, as applicable, shall deliver to the Paying Agent for deposit
in the Distribution Account not later than the P&I Advance Date relating to the
Distribution Date on which the final distribution on the Certificates is to
occur an amount in immediately available funds equal to the above-described
purchase price. In addition, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Certificate Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution. Upon written
confirmation that such final deposit has been made, the Trustee shall release or
cause to be released to the Master Servicer or the Depositor, as applicable, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Master
Servicer or the Depositor, as applicable, as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the Master Servicer (or its
designee) or the Depositor (or its designees), as applicable. Any transfer of
Mortgage Loans to the Depositor pursuant to this paragraph shall be on a
servicing-released basis and will no longer be subject to this Agreement.
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 to the extent a Responsible
Officer of the Trustee has knowledge of such termination, but in any event not
less than five days prior to such final Distribution Date, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (viii) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums, shall be allocated in the
following order of priority, in each case to the extent of remaining available
funds:
<PAGE>
-157-
(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,
Class A-2, Class A-3 and Class A-PO Certificates, in an amount equal to,
and pro rata in an amount equal to the Class Principal Balance of such
Classes of Certificates outstanding immediately prior to such Distribution
Date;
(iii) to distributions to the Holders of the Class A-PO, Class A-1,
Class A-2 and Class A-3 Certificates, in an amount equal to, and pro rata
in accordance with the amount of Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to such Classes of Certificates and
for which no reimbursement has previously been received, to reimburse such
Holders for such Realized Losses and Additional Trust Fund Expenses, if
any;
(iv) 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;
(v) after the Class Principal Balance of the Class A-PO Certificates,
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 equal to the Class
Principal Balance of the Class B Certificates outstanding immediately prior
to such Distribution Date;
(vi) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class B
Certificates and not previously reimbursed;
(vii) 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;
(viii) 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 equal to the Class Principal Balance
of the Class C Certificates outstanding immediately prior to such
Distribution Date;
(ix) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund
<PAGE>
-158-
Expenses, if any, previously allocated to the Class C Certificates and not
previously reimbursed;
(x) 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;
(xi) 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 equal to the Class Principal Balance of
the Class D Certificates outstanding immediately prior to such Distribution
Date;
(xii) to distributions to the Holders of the Class D Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class D
Certificates and not previously reimbursed;
(xiii) 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;
(xiv) 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 equal to the Class Principal Balance
of the Class E Certificates outstanding immediately prior to such
Distribution Date;
(xv) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class E
Certificates and not previously reimbursed;
(xvi) 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;
(xvii) 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 equal to the Class Principal Balance
of the Class F Certificates outstanding immediately prior to such
Distribution Date;
(xviii) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund
<PAGE>
-159-
Expenses, if any, previously allocated to the Class F Certificates and not
previously reimbursed;
(xix) 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;
(xx) 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 equal to the Class Principal Balance of
the Class G Certificates outstanding immediately prior to such Distribution
Date;
(xxi) to distributions to the Holders of the Class G Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class G
Certificates and not previously reimbursed;
(xxii) 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;
(xxiii) 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 equal to the Class Principal Balance
of the Class H Certificates outstanding immediately prior to such
Distribution Date;
(xxiv) to distributions to the Holders of the Class H Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class H
Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class J Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxvi) after the Class Principal Balance of the Class H Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class J Certificates, in an amount equal to the Class Principal Balance
of the Class J Certificates outstanding immediately prior to such
Distribution Date;
(xxvii) to distributions to the Holders of the Class J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund
<PAGE>
-160-
Expenses, if any, previously allocated to the Class J Certificates and not
previously reimbursed;
(xxviii) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class K Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxix) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, in an amount equal to the Class Principal Balance
of the Class K Certificates outstanding immediately prior to such
Distribution Date;
(xxx) to distributions to the Holders of the Class K Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class K
Certificates and not previously reimbursed; and
(xxxi) 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 (xxx) above.
Any Prepayment Premiums on deposit in the Certificate Account as of the final
Distribution Date shall be distributed among the Holders of the Regular
Certificates. Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If, within one year after the second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R-I
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject thereto (to the extent it is not required to dispose of
such unclaimed funds and assets otherwise in accordance with applicable state
escheatment law). Within 5 Business Days
<PAGE>
161-
after the final Distribution Date, the Trustee will direct the Master Servicer
to remit, and the Master Servicer will remit, to the Mortgage Loan Seller any
amounts remaining on deposit in the Quarterly Interest Reserve Account.
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(j).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, the Master Servicer or the Special Servicer purchases
all of the Mortgage Loans and each REO Property remaining in REMIC I as provided
in Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC
III) shall be terminated in accordance with the following additional
requirements, unless the Master Servicer, the Special Servicer or the Depositor,
as applicable, obtains at its own expense and delivers to the Trustee and the
REMIC Administrator and, in the case of the Depositor, to the Trustee and the
Master Servicer, an Opinion of Counsel, addressed to the Trustee, the REMIC
Administrator and the Master Servicer, to the effect that the failure of the
Trust Fund to comply with the requirements of this Section 9.02 will not result
in the imposition of taxes on "prohibited transactions" of REMIC I, REMIC II or
REMIC III as defined in Section 860F of the Code or cause REMIC I, REMIC II or
REMIC III to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) the REMIC Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
of REMIC I, REMIC II and REMIC III pursuant to Treasury Regulations Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder as set forth
in an Opinion of Counsel obtained by the purchasing party at the expense of
such purchasing party;
(ii) during such 90-day liquidation period and at or prior to the time
of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of REMIC I to the Master Servicer or the Depositor, as
applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I, REMIC II and REMIC III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the REMIC Administrator to specify the 90-day liquidation period
for each of
<PAGE>
-162-
REMIC I, REMIC II and REMIC III, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I, REMIC II
and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests and the
Regular Certificates (or in the case of the Class IO-1 and Class IO-2
Certificates, each of its Components) are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. The Class R-I Certificates, the Class R-II
Certificates and the Class R-III Certificates are hereby designated as the
single class of "residual interests" (within the meaning of Section 860G(a)(2)
of the Code) in REMIC I, REMIC II and REMIC III, respectively. None of the
Master Servicer, the Special Servicer or the Trustee shall (to the extent within
its control) permit the creation of any other "interests" in REMIC I, REMIC II
or REMIC III (within the meaning of Treasury Regulations Section
1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of REMIC I,
REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the Code.
(d) Each Plurality Residual Certificateholder as to the applicable taxable
year is hereby designated as the Tax Matters Person of each of REMIC I, REMIC II
and REMIC III, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided, that the REMIC Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each of REMIC I, REMIC II and REMIC III) as agent and
attorney-in-fact for the Tax Matters Person for each of REMIC I, REMIC II and
REMIC III in the performance of its duties as such.
(e) Solely for purposes of Treasury Regulations Sections
1.860G-1(a)(4)(iii), November 15, 2026 has been designated the "latest possible
maturity date" of each REMIC I Regular Interest, each REMIC II Regular Interest
and each Class of Regular Certificates (or in the case of the Class IO-1 and
Class IO-2 Certificates, each of the Components).
<PAGE>
-163-
(f) The Trustee shall pay any and all ordinary tax-related expenses of any
of REMIC I, REMIC II or REMIC III from the Trust Fund. Any taxes, penalties,
interest or extraordinary expenses including, but not limited to, any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to any of REMIC I, REMIC II or REMIC III that
involve the Internal Revenue Service or state or local taxing authorities will
(to the extent not payable by a specified Person pursuant to Section 10.01(j))
be expenses of the Trust Fund.
(g) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I, REMIC II and REMIC III. The ordinary expenses of preparing
and filing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The other parties hereto shall provide on a
timely basis to the REMIC Administrator or its designee such information with
respect to each of REMIC I, REMIC II and REMIC III as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Article. Without limiting the generality of the
foregoing, the Depositor, within ten days following the REMIC Administrator's
request therefor, shall provide in writing to the REMIC Administrator such
information as is reasonably requested by the REMIC Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the
REMIC Administrator's duty to perform its reporting and other tax compliance
obligations under this Article X shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Trustee to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC I,
REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or, with
respect to State and Local Taxes, any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide to: (i) any Transferor
of a Residual Certificate, 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
<PAGE>
-164-
Servicer's possession or control). None of the REMIC Administrator, Master
Servicer, the Special Servicer, the REMIC Administrator or the Trustee shall
knowingly take (or cause any of REMIC I, REMIC II or REMIC III to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of any of REMIC I, REMIC II or REMIC III as a REMIC, or (ii) except
as provided in Section 3.17(a), result in the imposition of a tax upon any of
REMIC I, REMIC II or REMIC III (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code or the result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code) (any such endangerment or imposition, except as
provided in Section 3.17(a)(iii), an "Adverse REMIC Event"), unless the REMIC
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the
REMIC Administrator seeks to take such action or to refrain from acting for the
benefit of the Certificateholders) to the effect that the contemplated action
will not result in an Adverse REMIC Event. The REMIC Administrator shall not
take any action or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the Special Servicer has advised it in
writing that either the Master Servicer or the Special Servicer has received or
obtained an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action with
respect to REMIC I, REMIC II or REMIC III, or causing any of REMIC I, REMIC II
or REMIC III to take any action, that is not expressly permitted under the terms
of this Agreement, the Master Servicer and the Special Servicer shall consult
with the REMIC Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur. Neither the
Master Servicer nor the Special Servicer shall take any such action or cause any
of REMIC I, REMIC II or REMIC III to take any such action as to which the REMIC
Administrator has advised it in writing that an Adverse REMIC Event could occur,
and neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instruments of the REMIC Administrator. The REMIC Administrator may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not expressly permitted by this Agreement, but
in no event at the cost or expense of the Trust Fund, the REMIC Administrator or
the Trustee. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of REMIC I, REMIC II and REMIC III will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of State or Local Tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be
<PAGE>
-165-
charged to and paid by: (i) the REMIC Administrator, if such tax arises out of
or results from a breach by the REMIC Administrator of any of its obligations
under this Article X provided that no liability shall be imposed upon the REMIC
Administrator under this clause if another party has responsibility for payment
of such tax under clauses (ii) - (vi) of this Section; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Article X; (iii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Article X;
(iv) the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under this Article X; (v) the Depositor, if
such tax was imposed due to the fact that any of the Mortgage Loans did not, at
the time of their transfer to the REMIC I, constitute a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code; or (vi) the Trust Fund in all other
instances. Any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)(iii) shall be charged to and paid by the Trust Fund. Any such
amounts payable by the Trust Fund shall be paid by the Paying Agent upon the
written direction of the REMIC Administrator out of amounts on deposit in the
Distribution Account in reduction of the Available Distribution Amount pursuant
to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II and REMIC
III on a calendar year and on an accrual basis.
(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
<PAGE>
-166-
or the Trustee) to the effect that such sale, disposition, or acquisition will
not cause: (x) REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at
any time that any Certificates are outstanding; or (y) the imposition of any tax
on REMIC I, REMIC II or REMIC III under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(n) Except in connection with Section 3.17(a)(iii), none of the Trustee,
the Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I, REMIC II or REMIC III will receive a fee or other compensation
for services nor, to the extent it is within its control, permit REMIC I, REMIC
II or REMIC III to receive any income from assets other than "qualified
mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add any other provisions
with respect to matters or questions arising hereunder which shall not be
inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, or (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Master Servicer, the Special Servicer and the Trustee, is
reasonably necessary to comply with any requirements imposed by the Code or any
successor or amendatory statute or any temporary or final regulation, revenue
ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any such proposed action
which, if made effective, would apply retroactively to any of the REMICs created
hereunder at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of any such REMIC; provided, that such action (except any amendment
described in clause (v) above) shall not, as evidenced by an Opinion of Counsel
obtained by or delivered to the Master Servicer, the Special Servicer and the
Trustee (which opinion, insofar as economic issues involving a Class of
Certificates rated by a Rating Agency 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 will not cause the
qualification, downgrading or withdrawal of the then current rating on any Class
of Certificates.
<PAGE>
-167-
(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 involving a Class of
Certificates rated by a Rating Agency 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
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.
<PAGE>
-168-
(f) Each of the Master Servicer, the Special Servicer and the Trustee may
but shall not be obligated to enter into any amendment pursuant to this Section
that affects its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a), (b) or (c) shall be borne by the Person seeking the related amendment,
except that if the Master Servicer, the Special Servicer or the Trustee requests
any amendment of this Agreement that protects or is in furtherance of the rights
and interests of Certificateholders, the cost of any Opinion of Counsel required
in connection therewith pursuant to Section 11.01(a) or (c) shall be payable out
of the Certificate Account or the Distribution Account pursuant to Section 3.05.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other 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
Trustee at the expense of the Trust Fund, but only upon written direction of the
Depositor 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.
<PAGE>
-169-
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless,
with respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates entitled to at least 25%
of the Voting Rights shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity, and without receiving notice to the contrary from
Holders of Certificates entitled to at least 25% of the Voting Rights, shall
have neglected or refused to institute any such action, suit or proceeding. It
is understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more Holders
of Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance with
the internal laws of the State of New York applicable to agreements made and to
be performed in said State, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws without
regard to conflicts of law principles.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given when delivered to: (i) in the case of the Depositor, Merrill Lynch
Mortgage Investors, Inc., World Financial Center, North Tower, 250 Vesey Street,
New York, New York 10281, Attention: the Secretary, with a copy to the
treasurer, facsimile number: 212-449-0735; (ii) in the case of the Master
Servicer and the Special Servicer, GMAC Commercial Mortgage Corporation, 650
Dresher Road, Horsham, Pennsylvania 19044, Attention: Master Servicing Manager,
fax no. (215) 328-3478, with a copy to General Counsel, fax no. (215) 328-3620,
and CMBS Portfolio Manager, fax no. (415) 391-2949; (iii) in the case of the
Trustee, Norwest Bank Minnesota, National Association, Corporate Trust
Department, 11000 Broken Land Parkway, Columbia, Maryland 21044-3562, Attn:
Corporate Trust Services (CMBS), Merrill Lynch Series 1998-C1-CTL, facsimile
number (410) 884-2360;(iv) in the case of the Rating Agencies, (A) Duff & Phelps
Credit Rating Co., 55 East Monroe Street, Chicago,
<PAGE>
-170-
Illinois 60603, Attention: Structured Finance Commercial Real Estate Monitoring
Group, facsimile number: (312) 263-2852; (B) Moody's Investors Service, Inc., 99
Church Street, New York, New York 10007, Attention: CMBS Monitoring; facsimile
number: 212-553-1350; 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; and (v) in the case of the Mortgage
Loan Seller, Daiwa Finance Corp. Financial Square, 32 Old Slip, New York, New
York 10005-3538, attention: Samuel Kirschner, fax number: (212) 612-6976, with a
copy to the attention of the General Counsel, fax number: (212) 612-7155; or as
to each such Person such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or permitted
to be delivered to a Certificateholder shall be deemed to have been duly given
when mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets constituting the Trust
Fund, and (ii) this Agreement shall constitute a security agreement under
applicable law. This Section 11.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the New York UCC.
SECTION 11.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and all
such provisions shall inure to the benefit of the Certificateholders. No other
Person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
<PAGE>
-171-
SECTION 11.09. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10. Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency with
respect to each of the following of which it has actual knowledge:
(i) any 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 Master Servicer or
the Special Servicer;
(iv) the repurchase of Mortgage Loans by any 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 or Special Servicer, as applicable, shall promptly
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any material modification of a Mortgage Loan, Credit Lease,
Lease Enhancement Policy or RVI Policy.
(c) The Master Servicer and the Special Servicer, as applicable, shall
furnish each Rating Agency with respect to a Mortgage Loan such information as
the Rating Agency shall reasonably request and which the Master Servicer or the
Special Servicer can reasonably provide in accordance with applicable law and
without waiving any attorney-client privilege attached to such information. The
Master Servicer or Special Servicer, as applicable, may attach any reasonable
disclaimer it deems appropriate to such information.
(d) To the extent applicable and not previously delivered, each of the
Master Servicer and the Special Servicer, as applicable, shall promptly furnish
to each Rating Agency copies of the following items:
<PAGE>
-172-
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iii) any Officers' Certificate delivered by it to the Trustee
pursuant to Section 4.03(c) or 3.08;
(iv) upon request, each of its inspection reports described in
Section 3.12(a) and the statements and reports described in Section
3.12(b).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 3.15 and Section 4.02(a) and
(ii) promptly deliver to each Rating Agency a copy of any notices given pursuant
to Section 7.03(a) or Section 7.03(b).
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers thereunto duly authorized, in each case as
of the day and year first above written.
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
By: /s/ ROBERT FITZPATRICK
-------------------------------
Name: Robert Fitzpatrick
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE CORPORATION
Master Servicer
By: /s/ KATHRYN MARQUARDT
-------------------------------
Name: Kathryn Marquardt
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
By: /s/ KATHRYN MARQUARDT
-------------------------------
Name: Kathryn Marquardt
Title: Senior Vice President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Trustee
By: /s/ RONALD M. FELDMAN
-------------------------------
Name: Ronald M. Feldman
Title: Vice President
<PAGE>
EXHIBIT A-1
CLASS A-1 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.31% Class A-1 Certificates as of the
Closing Date: $132,820,333
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class A-1
Certificate as of the Closing Date:
$132,820,333
Closing Date: March 31, 1998 Aggregate Stated Principal Balance
of the Mortgage Loans as of the
Cut-Off Date: $646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Norwest Bank Minnesota, National
Corporation Association
Special Servicer:
GMAC Commercial Mortgage
Corporation
Certificate No. 1 CUSIP No. 589929 PS1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 AND THE CLASS A-PO 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
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter
<PAGE>
called the "Master Servicer", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation (in such capacity, hereinafter
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (hereinafter
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-1 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-1 Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
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
<PAGE>
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.
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
<PAGE>
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, the Special 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, the Special 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 Cut-Off Date.
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.
<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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: _______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: _______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-2
CLASS A-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.48% Class A-2 Certificates as of the
Closing Date: $82,098,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class A-2
Certificate as of the Closing Date:
$82,098,000
Closing Date: March 31, 1998 Aggregate Stated Principal Balance
of the Mortgage Loans as of the
Cut-Off Date: $646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Norwest Bank Minnesota, National
Corporation Association
Special Servicer:
GMAC Commercial Mortgage
Corporation
Certificate No. 1 CUSIP No. 589929 PT9
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 AS AMENDED (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1
CERTIFICATES, THE CLASS A-3 AND THE CLASS A-PO 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
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter
<PAGE>
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (hereinafter
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-2 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-2 Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the 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
<PAGE>
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.
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
<PAGE>
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, the Special 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, the Special 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 Cut-Off Date.
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.
<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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ____________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-3
CLASS A-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.72% Class A-3 Certificates as of the
Closing Date: $235,868,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class A-3
Certificate as of the Closing Date:
$200,000,000
Closing Date: March 31, 1998 Aggregate Stated Principal Balance
of the Mortgage Loans as of the
Cut-Off Date: $646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Norwest Bank Minnesota, National
Corporation Association
Special Servicer:
GMAC Commercial Mortgage
Corporation
Certificate No. 1 CUSIP No. 589929 PU6
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1
CERTIFICATES, THE CLASS A-2 AND THE CLASS A-PO 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
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter
<PAGE>
called the "Master Servicer", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation (in such capacity, hereinafter
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (hereinafter
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-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 Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the 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
<PAGE>
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.
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
<PAGE>
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, the Special 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, the Special 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 Cut-Off Date.
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.
<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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
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.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-4
CLASS A-PO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a segregated pool of fixed rate mortgage loans
(the "Mortgage Loans") secured by first liens on commercial properties, such
pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Class Principal Balance of the
Class A-PO Certificates as of the
Closing Date $1,469,667
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class A-PO
Certificate as of the Closing
Date: $1,469,667
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota,
Special Servicer: National Association
AC Commercial Mortgage Corporation
Certificate No. 1 CUSIP No. 589929 QU5
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE 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 MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS $_______ 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1
CERTIFICATES, CLASS A-2 CERTIFICATES AND THE CLASS A-3 CERTIFICATES MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND
<PAGE>
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-PO Certificate (obtained by dividing the
principal amount of this Class A-PO Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-PO Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-PO Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-PO Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-PO
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the
<PAGE>
related Record Date (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions) and is the registered owner of
Certificates the aggregate initial Certificate Principal Balance of which is at
least $5,000,000, or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-PO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
A-PO Certificates are exchangeable for new Class A-PO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
<PAGE>
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-PO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-PO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-PO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class A-PO Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-PO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-5
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through
Rate: Variable
Date of Pooling and Servicing Aggregate Certificate Notional Amount
Agreement: March 1, 1998 of the Class IO Certificates as of
the Closing Date: $646,080,530
Closing Date: March 31, 1998 Certificate Notional Amount of this
Class IO Certificate as of the
Closing Date: $200,000,000
First Distribution Date: Aggregate Stated Principal Balance of
April 16, 1998 the Mortgage loans as of the Cut-Off
Date $646,080,530
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1 CUSIP No. 589929 PZ5
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE NOTIONAL AMOUNT, BUT IS
ENTITLED TO RECEIVE INTEREST ON THE COMPONENTS AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES A
BENEFICIAL OWNERSHIP INTEREST IN ELEVEN "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF THE INITIAL CERTIFICATE
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ___% PER ANNUM, AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $________ PER $1,000
OF THE 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.
<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), GMAC Commercial Mortgage Corporation (in such capacity, hereinafter
called the "Master Servicer", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation (in such capacity, hereinafter
called the "Special Servicer", which term includes any successor entity under
the Agreement), and Norwest Bank Minnesota, National Association (hereinafter
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class IO Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class IO Certificates will be made by Norwest
Bank Minnesota, National Association as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon
<PAGE>
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 purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class IO
Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same. As provided in the Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the offices of the Certificate Registrar, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or exchange
of Class IO Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Class IO Certificates.
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
<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, the Special 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, the Special 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 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 Cut-Off Date.
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.
<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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-6
CLASS B MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC
Initial Pass-Through Class Principal Balance of the
Rate: 6.75% Class B Certificates as of the
Closing Date: $38,765,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class B Certificate
as of the Closing Date: $38,765,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1 CUSIP No. 589929 PV4
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., THE TRUSTEE, MASTER SERVICER, SPECIAL SERVICER
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
A-PO AND CLASS IO CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS 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 G TO THE POOLING AND SERVICING
AGREEMENT REFEREED TO HEREIN.
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS A-PO
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C, CLASS
D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, AND CLASS K CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B Certificate (obtained by dividing the
principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), (or
any successor entity under the Agreement) and Norwest bank Minnesota, national
association (hereinafter called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
<PAGE>
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class B
Certificate will be made by Norwest Bank Minnesota, national association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
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.
<PAGE>
The Class B Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class B Certificate or any interest therein shall be made
to (A) a Plan or (B) any Person who is directly or indirectly purchasing the
Class B Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of the transfer
of a Class B Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit 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
Fiscal Agent, 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
Fiscal Agent, the Paying Agent, the
<PAGE>
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, the Trustee and the Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as a REMIC, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, 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
<PAGE>
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-7
CLASS C MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.75% Class C Certificates as of the
Closing Date: $32,304,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class C Certificate
as of the Closing Date: $32,304,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1 CUSIP No. 589929 PW2
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, 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 PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS C CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
<PAGE>
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS A-PO 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, CLASS H, CLASS J
AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class C Certificate (obtained by dividing the
principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class_C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose
<PAGE>
name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class C Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Class_C Certificate will be made by Norwest Bank Minnesota, National
Association, as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions) or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the 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.
<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 to execute a certification
substantially in the form of Exhibit G to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class 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, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate
<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, the Special 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, the Special 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 Cut-Off Date.
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.
<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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-8
CLASS D MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.75% Class D Certificates as of the
Closing Date: $38,765,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class DCertificate
as of the Closing Date: $38,765,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1 CUSIP No. 589929 PX0
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, CLASS IO, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS D CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
<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 A-PO, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class D Certificate (obtained by dividing the
principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the
<PAGE>
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class D
Certificate will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
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
<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 to execute a certification
substantially in the form of Exhibit G to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class D
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes,
<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, the Special 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, the Special 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 Cut-Off Date.
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.
<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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-9
CLASS E MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.75% Class E Certificates as of the
Closing Date: $9,691,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class Eertificate
as of the Closing Date: $9,691,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 PY8
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, CLASS IO CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO THIS REGISTRATION OF TRANSFER OF A
CLASS E CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE
THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
<PAGE>
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF INITIAL CERTIFICATE
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 A-PO, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS
J AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class E Certificate (obtained by dividing the
principal amount of this Class E Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class E Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the
<PAGE>
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class E Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on this Class E Certificate will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the 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.
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class E Certificate or any interest therein shall be made
to (A)_a Plan or (B)_any Person who is directly or indirectly purchasing the
Class 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 E Certificate, the Certificate Registrar shall have the right to require
the prospective transferee of such Certificate to execute a certification
substantially in the form of Exhibit G to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but the
<PAGE>
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class E Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special 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, the Special 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 Cut-Off Date.
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
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-10
CLASS F MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the
Rate: 6.25% Class F Certificates as of the
Closing Date:$58,147,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: March 1, 1998 Balance of this Class Fertificate
as of the Closing Date: $58,147,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 QP6
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, 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 AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER
OF A CLASS F CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A
CERTIFICATION SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
<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.
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 MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____________ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS A-PO, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J AND
CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [___] 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), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term
<PAGE>
includes any successor entity under the Agreement), and Norwest Bank Minnesota,
National Association (hereinafter called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class F Certificates on
the applicable Distribution Date pursuant to the Agreement. All Distributions
made under the Agreement on this Class F Certificate will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the 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.
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of 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 or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or
<PAGE>
Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class 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 upon acquisition
of its Class F Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to 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, the Special 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, the Special 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;
<PAGE>
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 Cut-Off Date.
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:______________________________
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-11
CLASS G MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the Class G
Rate: 6.25% Certificates as of the Closing Date:
$3,230,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: March 1, 1998 of this Class G Certificate as of the
Closing Date: $3,230,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Norwest Bank Minnesota,
Corporation National Association
Special Servicer: CUSIP No. 589929 QQ4
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, CLASS IO, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER
OF A CLASS G CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A
CERTIFICATION SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
<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.
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 MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____________ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS A-PO, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H, CLASS J
AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [___] 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), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term
<PAGE>
includes any successor entity under the Agreement), and Norwest Bank Minnesota,
National Association (hereinafter called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class G Certificates on
the applicable Distribution Date pursuant to the Agreement. All Distributions
made under the Agreement on this Class G Certificate will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future 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.
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class 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 or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or
<PAGE>
Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and upon acquisition
of its Class G Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
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, the Special 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, the Special 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;
<PAGE>
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 Cut-Off Date.
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
--------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-12
CLASS H MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans")secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the Class H
Rate: 6.25% Certificates as of the Closing Date:
$4,846,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: March 1, 1998 of this Class H Certificate as of the
Closing Date: $4,846,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Norwest Bank Minnesota,
Corporation National Association
Special Servicer: CUSIP No. 589929 QR2
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, CLASS IO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER
OF A CLASS H CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A
CERTIFICATION SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
<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.
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 MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____________ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS A-PO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J AND
CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [___] 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), GMAC Commercial Mortgage
Corporation (in such
<PAGE>
capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation (in
such capacity, hereinafter called the "Special Servicer", which term includes
any successor entity under the Agreement), and Norwest Bank Minnesota, National
Association (hereinafter called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class H Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on this Class H Certificate will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future 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
<PAGE>
appears in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially
<PAGE>
in the form attached as Exhibit F-1 to the Agreement, and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an
Opinion of Counsel satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class G Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class H Certificate without
registration or qualification. Any Class H Certificateholder desiring to effect
such a transfer shall, and upon acquisition of its Class H Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
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, the Special 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, the Special Servicer or
<PAGE>
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 H 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 Cut-Off Date.
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
---------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-13
CLASS J MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans")secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the Class J
Rate: 6.25% Certificates as of the Closing Date:
$1,615,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: March 1, 1998 of this Class J Certificate as of the
Closing Date: $1,615,000
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, Nationa
Association
Special Servicer: CUSIP No. 589929 QS0
GMAC Commercial Mortgage
Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, 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 AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER
OF A CLASS J CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A
CERTIFICATION SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
<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.
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 MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____________ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS A-PO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND
CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN
REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [___] is the registered owner of the Percentage
Interest evidenced by this Class J Certificate (obtained by dividing the
principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such
<PAGE>
capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation (in
such capacity, hereinafter called the "Special Servicer", which term includes
any successor entity under the Agreement), and Norwest Bank Minnesota, National
Association (hereinafter called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class J Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on this Class J Certificate will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future 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
<PAGE>
appears in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class J
Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially
<PAGE>
in the form attached as Exhibit F-1 to the Agreement, and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an
Opinion of Counsel satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class J Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class J Certificate without
registration or qualification. Any Class J Certificateholder desiring to effect
such a transfer shall, and upon acquisition of its Class J Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
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, the Special Servicer or
<PAGE>
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, the Special 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 J 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 Cut-Off Date.
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
---------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-14
CLASS K MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans")secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Class Principal Balance of the Class
Rate: 6.25% K Certificates as of the Closing
Date: $6,461,530
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: March 1, 1998 of this Class K Certificate as of
the Closing Date: $6,461.530
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer: CUSIP No. 589929 QT8
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, CLASS IO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H
AND CLASS J CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED, THAT (a) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (b) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO ITS REGISTRATION OF TRANSFER
OF A CLASS K CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE THE PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A
CERTIFICATION SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
<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.
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 MARCH 31, 1998. 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 FEBRUARY 25, 1998 AND THE PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 RELATING TO THIS CERTIFICATE) OF 0% AS SET FORTH IN SUCH
PROSPECTUS SUPPLEMENT (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $________ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% PER ANNUM, AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____________ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS A-PO, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY
THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [___] is the registered owner of the Percentage
Interest evidenced by this Class K Certificate (obtained by dividing the
principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest
<PAGE>
Bank Minnesota, National Association (hereinafter called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class K Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on this Class K Certificate will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions) or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this 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.
<PAGE>
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class K
Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or
<PAGE>
Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class K
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class K Certificate without registration or qualification. Any Class K
Certificateholder desiring to effect such a transfer shall, and upon acquisition
of its Class K Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class K 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 K
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, the Special 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, the Special 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 K Certificates;
<PAGE>
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 Cut-Off Date.
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
---------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-15
CLASS R-I MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: March 1, 1998 this Class R-I Certificate: 100%
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota,
National Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ALL OF THE REMIC I REGULAR INTERESTS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS R-I
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX-RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
<PAGE>
This certifies that [___] is the registered owner of the Percentage
Interest evidenced by this Class R-I Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-I
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date") (provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of the Class R-I
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-I Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
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,
<PAGE>
distributions to Certificateholders, such purposes including the reimbursement
of advances made, or certain expenses incurred, with respect to the Mortgage
Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons, representing Percentage Interests specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class R-I Certificates are exchangeable for new Class R-I Certificates as
authorized in the Agreement evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the Transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated Transferee or Transferees.
No Transfer of any Class R-I Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or any of its affiliates), then the Certificate Registrar shall refuse
to register such Transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
Transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-I Certificates under the
<PAGE>
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-I Certificate
without registration or qualification. Any Class R-I Certificateholder desiring
to effect such a Transfer shall, and upon acquisition of its Class R-I
Certificate agrees to, indemnify the Trustee, the Certificate Registrar and the
Depositor against any liability that may result if the Transfer is not so exempt
or is not made in accordance with such federal and state laws.
No Transfer of a Class R-I Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-1 Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of Transfer of
a Class R-1 Certificate, the Certificate Registrar shall have the right to
require the prospective Transferee of such Certificate to execute a
certification substantially in the form of Exhibit G to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
<PAGE>
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of this Certificate to
such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that doing so will not cause
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 "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
<PAGE>
is exempt from the tax imposed by Chapter I of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the Trustee based upon an Opinion of
Counsel provided to it that the holding of an Ownership Interest in a Class R-I
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class
R-I Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income is includible in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the U.S. is able
to exercise primary supervision over the administration of the trust and one or
more U.S. fiduciaries have the authority to control all substantial decisions of
the trust.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the
<PAGE>
Special 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, the
Special 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 Cut-Off 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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
---------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-16
CLASS R-II MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: March 1, 1998 this Class R-II Certificate: 100%
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE,, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ALL OF THE REMIC II REGULAR INTERESTS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS R-II
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX-RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
<PAGE>
This certifies that [___] is the registered owner of the Percentage
Interest evidenced by this Class R-II Certificate (obtained by dividing the
principal amount of this Class R-II Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-II
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date")(provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of this Class R-II
Certificate on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-II Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
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
<PAGE>
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons, representing Percentage Interests specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class R-II Certificates are exchangeable for new Class R-II Certificates
as authorized in the Agreement, evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the Transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated Transferee or Transferees.
No Transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or any of its affiliates), then the Certificate Registrar shall refuse
to register such Transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
Transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated
<PAGE>
to register or qualify the Class R-II Certificates under the Securities Act or
any other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class R-II Certificate without
registration or qualification. Any Class R-II Certificateholder desiring to
effect such a Transfer shall, and upon acquisition of its Class R-II Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the Transfer is not so exempt or is not
made in accordance with such federal and state laws.
No Transfer of a Class R-II Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-II Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without 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 to execute a
certification substantially in the form of Exhibit G to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest
<PAGE>
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 H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that doing so will not cause
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 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
<PAGE>
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-II Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-II Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income is includible in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the U.S. is able
to exercise primary supervision over the administration of the trust and one or
more U.S. fiduciaries have the authority to control all substantial decisions of
the trust.
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Certificate Registrar may require
payment of a but sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of Class R-II
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect
<PAGE>
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund,
and (ii) the purchase by the Master Servicer, the Special 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, the Special 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 Cut-Off 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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
---------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT A-17
CLASS R-III MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C1-CTL
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a segregated pool of fixed rate mortgage loans (the
"Mortgage Loans") secured by first liens on commercial properties, such pool
being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: March 1, 1998 Class R-III Certificate: 100%
Closing Date: March 31, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $646,080,530
First Distribution Date:
April 16, 1998
Master Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National
Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE UNDERWRITERS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE MORTGAGE LOAN SELLER OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-PO, CLASS IO, CLASS B, CLASS C, CLASS D, CLASS_E, CLASS F, CLASS G, CLASS H,
CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE PROHIBITED TRANSACTIONS RESTRICTIONS OF
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO ITS REGISTRATION OF TRANSFER OF A CLASS R-III
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE THE
PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE TO EXECUTE A CERTIFICATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT G TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN,
<PAGE>
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that [___] is the registered owner of the Percentage
Interest evidenced by this Class R-III Certificate (obtained by dividing the
principal amount of this Class R-III Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-III
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation (in such capacity, hereinafter called the "Master Servicer", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (in such capacity, hereinafter called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (hereinafter called the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date")(provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the related Determination Date), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of this Class R-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
<PAGE>
Loans, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Certificate Account, the
Distribution Account and, if established, the REO Account may be made from time
to time for purposes other than, and, in certain cases, prior to, distributions
to Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form only
without coupons, representing Percentage Interests specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class R-III Certificates are exchangeable for new Class R-III
Certificates as authorized in the Agreement evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the Transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-III Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated Transferee or Transferees.
No Transfer of any Class R-III Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer of any R-II Certificate is to be
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor or any
of its affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
or Exhibit F-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such Transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such
<PAGE>
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-III Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-III
Certificate without registration or qualification. Any Class R-III
Certificateholder desiring to effect such a Transfer shall, and upon acquisition
of its Class R-III Certificate agrees to, indemnify the Trustee, the Certificate
Registrar and the Depositor against any liability that may result if the
Transfer is not so exempt or is not made in accordance with such federal and
state laws.
No Transfer of a Class R-III Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-III Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without 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 to execute a
certification substantially in the form of Exhibit G to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other
<PAGE>
things, that such Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in this Certificate as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of Section 5.02(d)
of the Agreement and agrees to be bound by them. Notwithstanding the delivery of
a Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of this Certificate to
such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that doing so will not cause
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-III Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Class R-III Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation
<PAGE>
if all of its activities are subject to tax and, except for the FHLMC, a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter I of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the Trustee based upon an Opinion of
Counsel provided to it that the holding of an Ownership Interest in a Class
R-III Certificate by such Person may cause the Trust Fund or any Person having
an Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class
R-III Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income is includible in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the U.S. is able
to exercise primary supervision over the administration of the trust and one or
more U.S. fiduciaries have the authority to control all substantial decisions of
the trust.
No service charge will be imposed for any registration of transfer or
exchange of Class R-III Certificates, but the Certificate Registrar may require
payment of a but sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of Class R-III
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for
<PAGE>
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, the
Special 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, the
Special 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 Cut-Off 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, 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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: March 31, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Authenticating Agent
By:
---------------------------------
Authorized Officer
<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
<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.
<PAGE>
EXHIBIT B
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Allegheny Hospitals, Centennial 200 W. Lancaster Ave. Wayne PA 19087
2 Allegheny General Hospital 420 East North St. Pittsburgh PA 15212
3 Allegheny General Hospital Federal St./W.N. Ave Pittsburgh PA 15212
4 Baptist Hospital, Inc. 2011 Murphy Nashville TN 37203
5 Baptist Hospital, Inc. 360 Wallace Rd. Nashville TN 37211
6 Circuit City Stores, Inc. 1505 S. Colorado Blvd. Denver CO 80210
7 Circuit City Stores, Inc. 6353 S. Semoran Blvd. Orlando FL 32801
8 Circuit City Stores, Inc. 1901 Okeechobee Blvd. West Palm Beach FL 33409
9 Circuit City Stores, Inc. 4483 US Route 14 Crystal Lake IL 60014
10 Circuit City Stores, Inc. 8405 E. Kellog St. Wichita KS 67207
11 Circuit City Stores, Inc. 36300 Warren Rd Westland MI 48185
12 Circuit City Stores, Inc. 4600 28th Street SE Kentwood MI 49508
13 Circuit City Stores, Inc. 7230 Market St. Boardman OH 44512
14 Circuit City Stores, Inc. 3475 William Penn HWY Wilkins Township PA 15146
15 Circuit City Stores, Inc. 3423 Clemson Blvd. Anderson SC 29621
16 Eckerd Corp. 414 Atlantic Blvd. Neptune Beach FL 32266
17 Federal Insurance Company 12 Vreeland Rd. Florham Park NJ 07932
18 Fred Meyer, Inc. 8955 S/E 82nd Ave. Portland OR 97266
19 Fred Meyer, Inc. 16600 S/E McGillivray Blvd Vancouver WA 98683
20 Fred Meyer, Inc. 20901 Highway 410 Bonny Lake WA 98390
21 Giant Food, Inc. 11200 Main Street Fairfax VA 22030
24 Health Insurance Plan of
Greater New York 96-10 Metropolitan Ave. Forest Hills NY 11375
25 Heilig-Meyers Company 3215 Fairview Dr. Antioch CA 94509
26 Heilig-Meyers Company 700 Sereno Drive Vallejo CA 94589
27 Heilig-Meyers Company 5455 Mountainview Dr. Redding CA 96003
28 Heilig-Meyers Company 415 S. Roosevelt Ave. Burlington IA 52601
29 Heilig-Meyers Company 2514 Westdale Dr., SW Cedar Rapids IA 52404
30 Heilig-Meyers Company 150 John F. Kennedy Rd. Dubuque IA 52002
31 Heilig-Meyers Company 4141 Mirage Ridge Waterloo IA 50701
32 Heilig-Meyers Company 1763 Filmore St. Twin Falls ID 83301
33 Heilig-Meyers Company 6910 Fairview Ave Boise ID 83704
34 Heilig-Meyers Company 1900 52nd Ave. Moline IL 61265
35 Heilig-Meyers Company 255 South 36th Street Quincy IL 62301
36 Heilig-Meyers Company 10530 Airline HWY Baton Rouge LA 70816
37 Heilig-Meyers Company 1444 Grand Ave Billings MT 59102
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
SCHEDULED
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 9,201,195.07 188,600.00 7.870% 235 No Yes No - 10/10/2017
2 35,340,415.71 678,614.86 7.030% 223 No Yes No - 10/01/2016
3 67,170,088.09 1,241,762.50 6.890% 255 No Yes Yes 8/31/1999 06/10/2019
4 19,791,520.71 146,824.61 7.050% 274 No Yes Yes 8/31/1998 01/10/2021
5 3,449,962.45 24,784.15 6.570% 263 No Yes No - 02/10/2020
6 6,888,745.84 58,630.00 8.610% 259 No Yes No - 10/05/2019
7 12,121,850.51 96,715.75 7.640% 252 No Yes No - 03/05/2019
8 7,091,819.77 56,583.00 7.640% 252 No Yes No - 03/05/2019
9 5,009,996.97 42,640.00 8.610% 259 No Yes No - 10/05/2019
10 5,732,592.69 48,790.00 8.610% 259 No Yes No - 10/05/2019
11 8,275,356.41 66,026.00 7.640% 252 No Yes No - 03/05/2019
12 5,661,718.21 45,172.75 7.640% 252 No Yes No - 03/05/2019
13 5,464,462.52 43,598.92 7.640% 252 No Yes No - 03/05/2019
14 9,557,521.11 76,255.92 7.640% 252 No Yes No - 03/05/2019
15 3,343,954.14 26,680.17 7.640% 252 No Yes No - 03/05/2019
16 1,876,468.15 14,836.40 7.190% 220 No Yes No - 07/01/2016
17 17,912,874.88 145,925.57 6.900% 172 No Yes No - 07/01/2012
18 18,109,169.54 142,072.50 7.730% 268 No Yes No - 07/01/2020
19 13,524,712.95 105,848.17 7.700% 268 No Yes No - 07/01/2020
20 13,386,705.68 104,768.08 7.700% 268 No Yes No - 07/01/2020
21 4,719,750.33 35,615.42 7.620% 291 No Yes No - 06/01/2022
24 15,309,448.71 114,840.86 8.350% 299 No Yes No - 02/01/2023
25 2,403,348.19 18,784.89 7.480% 257 No Yes No - 08/10/2019
26 1,229,460.85 9,609.63 7.480% 257 No Yes No - 08/10/2019
27 1,292,169.61 10,099.77 7.480% 257 No Yes No - 08/10/2019
28 3,175,950.15 24,823.65 7.480% 257 No Yes No - 08/10/2019
29 1,667,288.59 13,031.75 7.480% 257 No Yes No - 08/10/2019
30 1,498,986.70 11,716.28 7.480% 257 No Yes No - 08/10/2019
31 1,566,990.92 12,247.81 7.480% 257 No Yes No - 08/10/2019
32 1,268,563.31 9,915.26 7.480% 257 No Yes No - 08/10/2019
33 2,012,010.19 15,726.14 7.480% 257 No Yes No - 08/10/2019
34 1,615,316.60 12,625.53 7.480% 257 No Yes No - 08/10/2019
35 1,635,959.80 12,786.88 7.480% 257 No Yes No - 08/10/2019
36 800,156.51 6,254.13 7.480% 257 No Yes No - 08/10/2019
37 955,606.77 7,469.15 7.480% 257 No Yes No - 08/10/2019
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
INITIAL QUARTERLY CAPITALIZED MORTGAGE
CONTROL FEE/ LEASE INTEREST RESERVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Fee Bondable 0.040% Daiwa GMACCM
2 Leasehold Bondable 0.040% Daiwa GMACCM
3 Fee Bondable $771,336.53 $7,029,458.64 0.040% Daiwa GMACCM
4 Leasehold Bondable $3,730,567.35 0.040% Daiwa GMACCM
5 Fee Bondable 0.040% Daiwa GMACCM
6 Fee Bondable 0.040% Daiwa GMACCM
7 Fee Bondable 0.040% Daiwa GMACCM
8 Fee Bondable 0.040% Daiwa GMACCM
9 Fee Bondable 0.040% Daiwa GMACCM
10 Fee Bondable 0.040% Daiwa GMACCM
11 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
12 Fee Bondable 0.040% Daiwa GMACCM
13 Fee Bondable 0.040% Daiwa GMACCM
14 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
15 Fee Bondable 0.040% Daiwa GMACCM
16 Fee Triple Net 0.040% Daiwa GMACCM
17 Fee Triple Net 0.040% Daiwa GMACCM
18 Fee Bondable 0.040% Daiwa GMACCM
19 Fee Bondable 0.040% Daiwa GMACCM
20 Fee Bondable 0.040% Daiwa GMACCM
21 Leasehold Triple Net 0.040% Daiwa GMACCM
24 Fee Double Net $916.67 0.040% Daiwa GMACCM
25 Fee Bondable 0.040% Daiwa GMACCM
26 Fee Bondable 0.040% Daiwa GMACCM
27 Fee Bondable 0.040% Daiwa GMACCM
28 Fee Bondable 0.040% Daiwa GMACCM
29 Fee Bondable 0.040% Daiwa GMACCM
30 Fee Bondable 0.040% Daiwa GMACCM
31 Fee Bondable 0.040% Daiwa GMACCM
32 Fee Bondable 0.040% Daiwa GMACCM
33 Fee Bondable 0.040% Daiwa GMACCM
34 Fee Bondable 0.040% Daiwa GMACCM
35 Fee Bondable 0.040% Daiwa GMACCM
36 Fee Bondable 0.040% Daiwa GMACCM
37 Fee Bondable 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
38 Heilig-Meyers Company 14255 SW Pacific HWY Tigard OR 97224
39 Heilig-Meyers Company 201 Division Avenue Eugene OR 97404
40 Heilig-Meyers Company 6101 Tualatin Valley Hwy Hillsboro OR 97123
41 Heilig-Meyers Company 3540 Commercial St., SE Salem OR 97302
42 Heilig-Meyers Company 7407 NE Vancouver Plaza Vancouver WA 98662
43 Heilig-Meyers Company 7520 N Division St. North Spokane WA 99208
44 Heilig-Meyers Company South 1807 First St. Yakima WA 98901
45 Home Depot U.S.A., Inc. 7200 S. Cicero Avenue Bedford Park IL 60629
48 Kmart Corp. 310 Gardner Field Rd Taft CA 93268
49 Kmart Corp. Orchard & Clara Aves. Ukiah CA 95482
50 Kmart Corp. 375 E. Allesandro Blvd. Riverside CA 92508
51 Kmart Corp. 33201 Van Dyke Ave. Sterling Heights MI 48312
52 The Times Mirror Company 23252 Moulton Pkwy. Laguna Hills CA 92653
53 County of Monroe 50 West Main St. Rochester NY 14610
54 Nine West Group, Inc. 1111-1113 Westchester Ave. White Plains NY 10604
55 Northwestern Human Services, Inc.
a Northwestern Human Services, Inc. 35 East High Street Philadelphia PA 19144
b Northwestern Human Services, Inc. 235-37 West Schoolhouse Lane Philadelphia PA 19144
c Northwestern Human Services, Inc. 5701 Thomas Ave. Philadelphia PA 19143
d Northwestern Human Services, Inc. 3823 Garrett Road Upper Darby PA 19026
e Northwestern Human Services, Inc. 26 Red Rowan Lane Plymouth Meeting PA 19462
f Northwestern Human Services, Inc. 1237 Tyson Street Philadelphia PA 19111
g Northwestern Human Services, Inc. Road 2 Box 283R Sunbury PA 18360
h Northwestern Human Services, Inc. Road 2 Box 396 Sunbury PA 17801
i Northwestern Human Services, Inc. 9009 Cargill Lane Philadelphia PA 19115
j Northwestern Human Services, Inc. 17 North Wayne Street Lewistown PA 17044
k Northwestern Human Services, Inc. 1616 Gregg Street Philadelphia PA 19115
56 Northwestern Human Services, Inc.
a Northwestern Human Services, Inc. 9425 Stenton Ave Springfield Township PA 19038
b Northwestern Human Services, Inc. 5126 Jack Road St. Thomas Township PA 17252
c Northwestern Human Services, Inc. 620 Germantown Pike White Marsh Township PA 19444
d Northwestern Human Services, Inc. 1134 N. 64th Street Philadelphia PA 19151
e Northwestern Human Services, Inc. Box 9223, Route 209 Stroudsburg PA 18360
f Northwestern Human Services, Inc. 1700 Freeport Road Bethel PA 17046
g Northwestern Human Services, Inc. 1448 Karen Drive Harrisburg PA 17121
h Northwestern Human Services, Inc. 1676 Heilmandale Road North Lebanon PA 17046
i Northwestern Human Services, Inc. 7015 Ridge Avenue Philadelphia PA 19128
j Northwestern Human Services, Inc. 460 Cinnaminson Street Philadelphia PA 19128
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
38 1,691,867.24 13,223.86 7.480% 257 No Yes No - 08/10/2019
39 1,691,867.24 13,223.86 7.480% 257 No Yes No - 08/10/2019
40 1,691,867.24 13,223.86 7.480% 257 No Yes No - 08/10/2019
41 1,714,652.16 13,401.95 7.480% 257 No Yes No - 08/10/2019
42 1,636,373.05 12,790.11 7.480% 257 No Yes No - 08/10/2019
43 1,914,325.06 14,962.62 7.480% 257 No Yes No - 08/10/2019
44 1,229,619.50 9,610.87 7.480% 257 No Yes No - 08/10/2019
45 21,168,826.53 145,645.65 6.960% 235 Insured Yes No - 10/10/2017
48 5,386,097.27 40,895.14 7.810% 300 No Yes No - 03/05/2023
49 7,525,857.47 65,842.03 7.710% 207 No Yes No - 06/05/2015
50 3,046,791.84 23,514.43 7.800% 285 No Yes No - 12/05/2021
51 6,816,611.39 52,958.73 7.790% 279 No Yes No - 06/05/2021
52 3,578,054.58 28,145.02 6.630% 158 No Yes No - 05/01/2011
53 15,884,013.95 120,076.56 6.640% 246 No Yes Yes 9/1/1998 09/01/2018
54 45,888,588.25 420,750.99 9.000% 228 No Yes No - 03/01/2017
55
a 209,085.42 1,663.84 7.400% 115 Tenant Yes No - 10/05/2007
b 1,216,497.00 9,680.51 7.400% 115 Tenant Yes No - 10/05/2007
c 636,760.15 5,067.14 7.400% 115 Tenant Yes No - 10/05/2007
d 826,837.81 6,579.72 7.400% 115 Tenant Yes No - 10/05/2007
e 180,573.77 1,436.95 7.400% 115 Tenant Yes No - 10/05/2007
f 152,062.13 1,210.06 7.400% 115 Tenant Yes No - 10/05/2007
g 123,550.48 983.18 7.400% 115 Tenant Yes No - 10/05/2007
h 133,054.36 1,058.81 7.400% 115 Tenant Yes No - 10/05/2007
i 199,581.54 1,588.21 7.400% 115 Tenant Yes No - 10/05/2007
j 76,031.06 605.03 7.400% 115 Tenant Yes No - 10/05/2007
k 171,069.89 1,361.32 7.400% 115 Tenant Yes No - 10/05/2007
56
a 3,378,049.84 27,277.22 7.460% 112 Tenant Yes No - 07/05/2007
b 159,519.02 1,288.09 7.460% 112 Tenant Yes No - 07/05/2007
c 4,607,284.64 37,203.10 7.460% 112 Tenant Yes No - 07/05/2007
d 75,067.77 606.16 7.460% 112 Tenant Yes No - 07/05/2007
e 215,819.85 1,742.71 7.460% 112 Tenant Yes No - 07/05/2007
f 159,519.02 1,288.09 7.460% 112 Tenant Yes No - 07/05/2007
g 131,368.60 1,060.78 7.460% 112 Tenant Yes No - 07/05/2007
h 159,519.02 1,288.09 7.460% 112 Tenant Yes No - 07/05/2007
i 75,067.77 606.16 7.460% 112 Tenant Yes No - 07/05/2007
j 140,752.08 1,136.55 7.460% 112 Tenant Yes No - 07/05/2007
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL FEE/ LEASE INTEREST RESEREVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
38 Fee Bondable 0.040% Daiwa GMACCM
39 Fee Bondable 0.040% Daiwa GMACCM
40 Fee Bondable 0.040% Daiwa GMACCM
41 Fee Bondable 0.040% Daiwa GMACCM
42 Fee Bondable 0.040% Daiwa GMACCM
43 Fee Bondable 0.040% Daiwa GMACCM
44 Fee Bondable 0.040% Daiwa GMACCM
45 Fee Double Net $305,561.70 0.040% Daiwa GMACCM
48 Leasehold Bondable 0.040% Daiwa GMACCM
49 Leasehold Bondable 0.040% Daiwa GMACCM
50 Leasehold Bondable 0.040% Daiwa GMACCM
51 Leasehold Bondable 0.040% Daiwa GMACCM
52 Fee Double Net 0.040% Daiwa GMACCM
53 Fee & Leasehold Double Net 0.040% Daiwa GMACCM
54 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
55 Bondable
a Fee Bondable 0.040% Daiwa GMACCM
b Fee Bondable 0.040% Daiwa GMACCM
c Fee Bondable 0.040% Daiwa GMACCM
d Fee Bondable 0.040% Daiwa GMACCM
e Fee Bondable 0.040% Daiwa GMACCM
f Fee Bondable 0.040% Daiwa GMACCM
g Fee Bondable 0.040% Daiwa GMACCM
h Fee Bondable 0.040% Daiwa GMACCM
i Fee Bondable 0.040% Daiwa GMACCM
j Fee Bondable 0.040% Daiwa GMACCM
k Fee Bondable 0.040% Daiwa GMACCM
56 Bondable
a Fee Bondable 0.040% Daiwa GMACCM
b Fee Bondable 0.040% Daiwa GMACCM
c Fee Bondable 0.040% Daiwa GMACCM
d Fee Bondable 0.040% Daiwa GMACCM
e Fee Bondable 0.040% Daiwa GMACCM
f Fee Bondable 0.040% Daiwa GMACCM
g Fee Bondable 0.040% Daiwa GMACCM
h Fee Bondable 0.040% Daiwa GMACCM
i Fee Bondable 0.040% Daiwa GMACCM
j Fee Bondable 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
k Northwestern Human Services, Inc. 9601 Hayden Street Philadelphia PA 19115
l Northwestern Human Services, Inc. 3890 Woodhaven Road Philadelphia PA 19154
m Northwestern Human Services, Inc. 5518 Pine Street Harrisburg PA 17109
n Northwestern Human Services, Inc. 15020 Worthington Road Philadelphia PA 19116
o Northwestern Human Services, Inc. 1043 North 67th Street Philadelphia PA 19151
p Northwestern Human Services, Inc. 8401 Rising Sun Ave. Philadelphia PA 19111
q Northwestern Human Services, Inc. Old Route 220 Rd. #2 Bedford Township PA 15522
r Northwestern Human Services, Inc. 906 Bethlehem Pike Springfield Township PA 19038
s Northwestern Human Services, Inc. 243 West Schoolhouse Lane Philadelphia PA 19144
t Northwestern Human Services, Inc. 503 Market Street Sunbury PA 17801
u Northwestern Human Services, Inc. 920-22 North 19th Street Philadelphia PA 19130
v Northwestern Human Services, Inc. 5542-44 Ridge Avenue Philadelphia PA 19128
w Northwestern Human Services, Inc. Route 3 Box 198a-2 Rockefeller Township PA 17801
x Northwestern Human Services, Inc. 314 E. Wister Street Philadelphia PA 19144
y Northwestern Human Services, Inc. 6100 Newtown Ave. Philadelphia PA 19111
z Northwestern Human Services, Inc. 1 Sutherland Road Montclair NJ 08817
aa Northwestern Human Services, Inc. 25 Burnt Tavern Road Millstone NJ 08510
bb Northwestern Human Services, Inc. 52 Beverly-Rancocas Road Willingboro NJ 08046
57 Northwestern Human Services, Inc. Coal Township Northumberland PA 17866
58 Office Depot, Inc. 7420-7444 Brook Park Rd. Brooklyn OH 44134
59 The Golub Corporation (Price
Chopper) 101 Dunning Rd. Wallkill NY 10940
60 The Golub Corporation (Price
Chopper) Lot 2, North Main St. St. Albans VT 05478
61 Q Clubs Inc. 9800 West Atlantic Blvd. Coral Springs FL 33071
62 Q Clubs Inc. 700 Pine Island Rd. Plantation FL 33324
64 Q Clubs Inc. 3600 Emporium Circle Mesquite TX 75150
65 Q Clubs Inc. 1375 East Campbell Rd. Richardson TX 75081
66 Q Clubs Inc. 4600 W. Park Blvd. Plano TX 75093
67 Q Clubs Inc. 7300 W. Greens Rd Willow Brook TX 77064
68 Rite Aid Corporation 1175 Second Street Brentwood CA 94513
69 Rite Aid Corporation 8585 Elk Grove Blvd. Elk Grove CA 95624
70 Rite Aid Corporation 1935 N Street Newman CA 95360
74 Rite Aid Corporation 1123 Donner Pass Road Truckee CA 96161
75 Rite Aid Corporation 1271 Main St. Watertown CT 6795
76 Rite Aid Corporation 2809 E. Cleveland Blvd. Caldwell ID 83605
77 Rite Aid Corporation 204 Park Ave. Carrolton KY 41008
78 Rite Aid Corporation 308 Parkway Dr. Salyersville KY 41465
79 Rite Aid Corporation 27050 John R. Road Madison Hgts. MI 48091
80 Rite Aid Corporation 416 Daniel Webster HWY Merrimack NH 03054
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
k 168,902.49 1,363.86 7.460% 112 Tenant Yes No - 07/05/2007
l 178,285.96 1,439.63 7.460% 112 Tenant Yes No - 07/05/2007
m 131,368.60 1,060.78 7.460% 112 Tenant Yes No - 07/05/2007
n 394,105.81 3,182.34 7.460% 112 Tenant Yes No - 07/05/2007
o 75,067.77 606.16 7.460% 112 Tenant Yes No - 07/05/2007
p 178,285.96 1,439.63 7.460% 112 Tenant Yes No - 07/05/2007
q 534,857.89 4,318.89 7.460% 112 Tenant Yes No - 07/05/2007
r 1,660,874.50 13,411.30 7.460% 112 Tenant Yes No - 07/05/2007
s 487,940.53 3,940.04 7.460% 112 Tenant Yes No - 07/05/2007
t 225,203.32 1,818.48 7.460% 112 Tenant Yes No - 07/05/2007
u 234,586.79 1,894.25 7.460% 112 Tenant Yes No - 07/05/2007
v 450,406.64 3,636.96 7.460% 112 Tenant Yes No - 07/05/2007
w 112,601.66 909.24 7.460% 112 Tenant Yes No - 07/05/2007
x 722,527.33 5,834.29 7.460% 112 Tenant Yes No - 07/05/2007
y 84,451.25 681.93 7.460% 112 Tenant Yes No - 07/05/2007
z 365,955.40 2,955.03 7.460% 112 Tenant Yes No - 07/05/2007
aa 319,038.04 2,576.18 7.460% 112 Tenant Yes No - 07/05/2007
bb 581,775.25 4,697.74 7.460% 112 Tenant Yes No - 07/05/2007
57 14,135,554.35 109,041.52 7.140% 135 Tenant Yes Yes 5/31/1999 06/05/2009
58 4,488,420.74 34,768.82 8.818% 229 No Yes No - 04/01/2017
59 5,544,666.27 39,120.92 7.571% 282 No Yes No - 09/01/2021
60 6,067,932.30 43,956.25 7.950% 295 No Yes No - 10/01/2022
61 8,476,307.61 73,864.51 8.760% 250 No Yes No - 01/10/2019
62 8,217,471.25 71,608.95 8.760% 250 No Yes No - 01/10/2019
64 6,546,935.03 57,051.51 8.760% 250 No Yes No - 01/10/2019
65 7,017,113.02 61,148.75 8.760% 250 No Yes No - 01/10/2019
66 7,588,356.71 66,126.70 8.760% 250 No Yes No - 01/10/2019
67 5,841,894.12 50,907.62 8.760% 250 No Yes No - 01/10/2019
68 4,669,039.90 32,352.06 6.739% 261 Insured Yes No - 12/10/2019
69 4,072,992.28 28,222.01 6.739% 261 Insured Yes No - 12/10/2019
70 3,278,262.61 22,715.28 6.739% 261 Insured Yes No - 12/10/2019
74 3,377,603.64 23,403.62 6.739% 261 Insured Yes No - 12/10/2019
75 2,880,897.05 19,961.91 6.739% 261 Insured Yes No - 12/10/2019
76 3,973,651.25 27,533.67 6.739% 261 Insured Yes No - 12/10/2019
77 2,284,849.43 15,831.86 6.739% 261 Insured Yes No - 12/10/2019
78 2,066,298.88 14,317.51 6.739% 261 Insured Yes No - 12/10/2019
79 2,831,226.53 19,617.74 6.739% 261 Insured Yes No - 12/10/2019
80 2,036,495.42 14,111.00 6.739% 261 Insured Yes No - 12/10/2019
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL FEE/ LEASE INTEREST RESEREVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
k Fee Bondable 0.040% Daiwa GMACCM
l Fee Bondable 0.040% Daiwa GMACCM
m Fee Bondable 0.040% Daiwa GMACCM
n Fee Bondable 0.040% Daiwa GMACCM
o Fee Bondable 0.040% Daiwa GMACCM
p Fee Bondable 0.040% Daiwa GMACCM
q Fee Bondable 0.040% Daiwa GMACCM
r Fee Bondable 0.040% Daiwa GMACCM
s Fee Bondable 0.040% Daiwa GMACCM
t Fee Bondable 0.040% Daiwa GMACCM
u Fee Bondable 0.040% Daiwa GMACCM
v Fee Bondable 0.040% Daiwa GMACCM
w Fee Bondable 0.040% Daiwa GMACCM
x Fee Bondable 0.040% Daiwa GMACCM
y Fee Bondable 0.040% Daiwa GMACCM
z Fee Bondable 0.040% Daiwa GMACCM
aa Fee Bondable 0.040% Daiwa GMACCM
bb Fee Bondable 0.040% Daiwa GMACCM
57 Fee Bondable $1,266,198.16 0.040% Daiwa GMACCM
58 Fee Double Net $12,395.45 0.040% Daiwa GMACCM
59 Fee Bondable 0.040% Daiwa GMACCM
60 Fee Triple Net $44,767.89 0.040% Daiwa GMACCM
61 Fee Bondable 0.040% Daiwa GMACCM
62 Fee Bondable 0.040% Daiwa GMACCM
64 Fee Bondable 0.040% Daiwa GMACCM
65 Fee Bondable 0.040% Daiwa GMACCM
66 Fee Bondable 0.040% Daiwa GMACCM
67 Fee Bondable 0.040% Daiwa GMACCM
68 Fee Bondable 0.040% Daiwa GMACCM
69 Fee Bondable 0.040% Daiwa GMACCM
70 Fee Bondable 0.040% Daiwa GMACCM
74 Fee Bondable 0.040% Daiwa GMACCM
75 Fee Bondable 0.040% Daiwa GMACCM
76 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
77 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
78 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
79 Fee Bondable 0.040% Daiwa GMACCM
80 Fee Bondable 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
81 Rite Aid Corporation 86 Elm St. Milford NH 03055
82 Rite Aid Corporation 160 Washington Ave. Carteret NJ 07008
83 Rite Aid Corporation 8530 W. Lake Mead Blvd. Las Vegas NV 89128
84 Rite Aid Corporation 400 Suffolk Ave. Brentwood NY 11717
85 Rite Aid Corporation 2532-54 86th St. Brooklyn NY 11214
86 Rite Aid Corporation Rt 9 W & Cauterskill Catskill NY 12414
87 Rite Aid Corporation SEC Rt 9 & 11 Champlain NY 12919
88 Rite Aid Corporation 2 Central Ave. Ravena NY 12143
89 Rite Aid Corporation E. 71st & Harvard Cleveland OH 44105
90 Rite Aid Corporation Salem & Grand Ave. Dayton OH 45406
91 Rite Aid Corporation 34321 Center Ridge Road N. Ridgeville OH 44039
92 Rite Aid Corporation 27299 Chagrin Boulevard Woodmere OH 44122
93 Rite Aid Corporation 90 "B" Avenue Lake Oswego OR 97034
94 Rite Aid Corporation 435 Liberty St, N.E. Salem OR 97301
95 Rite Aid Corporation 5100 Library Road Bethel Park PA 15102
96 Rite Aid Corporation 5400 Rising Sun Avenue Philadelphia PA 19120
97 Rite Aid Corporation 507 W. Elk Ave. Elizbethton TN 37643
98 Rite Aid Corporation 3460 S. 5600 West West Valley UT 84120
99 Rite Aid Corporation 2917 Brandon Ave, S.W. Roanoke VA 24015
100 Rite Aid Corporation 1500 W Beverly St. Staunton VA 24401
101 Rite Aid Corporation 1660 Independence Blvd. Virginia Beach VA 23455
102 Rite Aid Corporation 9 Susie Wilson Rd. Essex Junction VT 05451
103 Rite Aid Corporation US Rt 7 Middlebury VT 05753
104 Rite Aid Corporation 700 S. Main Street Ellensburg WA 98926
105 Rite Aid Corporation 1630 Grand Ave. Pullman WA 99163
106 Rite Aid Corporation 5606 Summitview Ave. Yakima WA 98908
107 Rite Aid Corporation 3175 W. DuPont Ave Belle WV 25015
108 Rite Aid Corporation 4580 Liberty Ave. Vermilion OH 44089
109 Rite Aid Corporation 939 US 31 South Traverse City MI 49684
110 Rite Aid Corporation 5 Saco Ave. Old Orchard Beach ME 04064
111 Rite Aid Corporation 10-20 West Main Street Landsdale PA 19446
112 Rite Aid Corporation 1936 Van Vranken Ave. Schenectady NY 12308
113 Time Warner Entertainment, L.P. US Highway 92 Auburndale FL 33610
</TABLE>
- ----------
(1) Control Numbers 1, 2, and 3 are quarterly-pay loans.
(2) The date upon which construction is scheduled to be completed pursuant to
the terms of the Credit Lease and related documents.
(3) Servicing Fees include Primary and Master Servicing.
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
81 2,334,519.95 16,176.03 6.739% 261 Insured Yes No - 12/10/2019
82 4,271,674.34 29,598.69 6.739% 261 Insured Yes No - 12/10/2019
83 4,967,062.98 34,417.08 6.739% 261 Insured Yes No - 12/10/2019
84 3,576,285.69 24,780.30 6.739% 261 Insured Yes No - 12/10/2019
85 3,079,579.11 21,338.59 6.739% 261 Insured Yes No - 12/10/2019
86 2,433,860.98 16,864.37 6.739% 261 Insured Yes No - 12/10/2019
87 1,887,483.88 13,078.49 6.739% 261 Insured Yes No - 12/10/2019
88 2,086,167.38 14,455.18 6.739% 261 Insured Yes No - 12/10/2019
89 2,607,708.50 18,068.97 6.739% 261 Insured Yes No - 12/10/2019
90 2,731,885.51 18,929.40 6.739% 261 Insured Yes No - 12/10/2019
91 2,607,708.50 18,068.97 6.739% 261 Insured Yes No - 12/10/2019
92 3,029,908.59 20,994.42 6.739% 261 Insured Yes No - 12/10/2019
93 2,384,190.46 16,520.20 6.739% 261 Insured Yes No - 12/10/2019
94 6,059,817.18 41,988.84 6.739% 261 Insured Yes No - 12/10/2019
95 2,627,576.99 18,206.64 6.739% 261 Insured Yes No - 12/10/2019
96 2,548,103.02 17,655.96 6.739% 261 Insured Yes No - 12/10/2019
97 1,927,220.86 13,353.83 6.739% 261 Insured Yes No - 12/10/2019
98 3,377,603.64 23,403.62 6.739% 261 Insured Yes No - 12/10/2019
99 2,582,872.52 17,896.88 6.739% 261 Insured Yes No - 12/10/2019
100 2,384,190.46 16,520.20 6.739% 261 Insured Yes No - 12/10/2019
101 2,880,897.05 19,961.91 6.739% 261 Insured Yes No - 12/10/2019
102 1,907,352.37 13,216.16 6.739% 261 Insured Yes No - 12/10/2019
103 1,639,131.30 11,357.64 6.739% 261 Insured Yes No - 12/10/2019
104 3,377,603.64 23,403.62 6.739% 261 Insured Yes No - 12/10/2019
105 2,582,872.52 17,896.88 6.739% 261 Insured Yes No - 12/10/2019
106 4,172,333.31 28,910.35 6.739% 261 Insured Yes No - 12/10/2019
107 1,241,765.75 8,604.27 6.739% 261 Insured Yes No - 12/10/2019
108 1,689,673.43 12,779.46 7.050% 256 No Yes No - 07/10/2019
109 1,575,114.51 12,880.08 7.253% 223 No No No - 10/10/2016
110 1,826,132.74 15,271.75 7.620% 225 No Yes No - 12/01/2016
111 2,688,537.94 19,803.55 7.670% 238 No Yes No - 01/01/2018
112 1,681,245.78 13,476.46 7.740% 254 No Yes No - 05/10/2019
113 3,055,623.03 28,169.58 7.360% 180 No Yes Yes 4/1/1998 03/10/2013
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL FEE/ LEASE INTEREST RESERVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
81 Fee Bondable 0.040% Daiwa GMACCM
82 Fee Bondable 0.040% Daiwa GMACCM
83 Fee Bondable 0.040% Daiwa GMACCM
84 Fee Bondable 0.040% Daiwa GMACCM
85 Fee Bondable 0.040% Daiwa GMACCM
86 Fee Bondable 0.040% Daiwa GMACCM
87 Fee Bondable 0.040% Daiwa GMACCM
88 Fee Bondable 0.040% Daiwa GMACCM
89 Fee Bondable 0.040% Daiwa GMACCM
90 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
91 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
92 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
93 Fee Bondable 0.040% Daiwa GMACCM
94 Fee Bondable 0.040% Daiwa GMACCM
95 Fee Bondable 0.040% Daiwa GMACCM
96 Fee Bondable 0.040% Daiwa GMACCM
97 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
98 Fee Bondable 0.040% Daiwa GMACCM
99 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
100 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
101 Fee Bondable 0.040% Daiwa GMACCM
102 Fee Bondable 0.040% Daiwa GMACCM
103 Fee Bondable 0.040% Daiwa GMACCM
104 Fee Bondable 0.040% Daiwa GMACCM
105 Fee Bondable 0.040% Daiwa GMACCM
106 Fee Bondable 0.040% Daiwa GMACCM
107 Fee Bondable 0.040% Daiwa GMACCM
108 Fee Bondable 0.040% Daiwa GMACCM
109 Fee Double Net $2,236.28 0.040% Daiwa GMACCM
110 Fee Double Net $2,580.20 0.040% Daiwa GMACCM
111 Fee Triple Net 0.040% Daiwa GMACCM
112 Fee Bondable 0.040% Daiwa GMACCM
113 Fee Bondable $19,061.91 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
EXHIBIT C
FORM OF SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
MLMI 1998-C1-CTL
Control Borrower Document Document Exception
No. Name ID Status Description
------- -------- -------- -------- -----------
C-1
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
____________, 199_
Norwest Bank Minnesota, N.A.
3 New York Plaza, 15th Floor
New York, New York 10004
Attn: Corporate Trust Services (CMBS)
Re: MLMI Series 1998-C1-CTL
-------------------------------
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 March 1,
1998 (the "Pooling and Servicing Agreement"), by and among Merrill Lynch
Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer, GMAC Commercial Mortgage Corporation, 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.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
GMAC Commercial Mortgage Corporation
as Master Servicer
By:
--------------------------------------
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
____________, 199_
Norwest Bank Minnesota, N.A.
3 New York Plaza, 15th Floor
New York, New York 10004
Attn: Corporate Trust Services (CMBS)
Re: MLMI Series 1998-C1-CTL
--------------------------------
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 March 1,
1998 (the "Pooling and Servicing Agreement"), by and among Merrill Lynch
Mortgage Investors, Inc., as depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer and GMAC Commercial Mortgage Corporation, as Special Servicer,
and you, as Custodian, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by you with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
D-2-1
<PAGE>
Reason for requesting file (or portion thereof):
___________ 1. The Mortgage Loan is being foreclosed.
___________ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
GMAC Commercial Mortgage Loan Corporation,
as Special Servicer
By:
--------------------------------------
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
[RESERVED]
E-1-1
<PAGE>
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
_______________ __, 199_
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL
(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 March 30, 1998 (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 March 1, 1998,
among Merrill Lynch Mortgage Investors, Inc., as depositor, GMAC Commercial
Mortgage Corporation, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, and Norwest Bank Minnesota, National Association, as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accepted a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar
F-1-1
<PAGE>
security with any person in any manner, (d) made any general solicitation
by means of general advertising or in any other manner, or (e) taken any
other action, which (in the case of any of the acts described in clauses
(a) through (e) hereof) would constitute a distribution of any Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Certificate pursuant to the Securities
Act or any state securities laws.
Very truly yours,
______________________________________
(Transferor)
By:
----------------------------------
Name: ________________________
Title: ________________________
F-1-2
<PAGE>
EXHIBIT F-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
_________________ __, 199_
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL
(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 March 30, 1998 (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 March 1, 1998,
among Merrill Lynch Mortgage Investors, Inc., as depositor, GMAC Commercial
Mortgage Corporation, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, and Norwest Bank Minnesota, National Association, as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own
F-2-1
<PAGE>
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.
3. If the Transferee is proposing that the Certificates being acquired
should be registered in the name of a nominee, such nominee's name is
specified hereafter and the Transferee has caused the execution of the
Nominee Acknowledgment below.
Nominee (if any): _____________________________
Very truly yours,
______________________________________
(Transferee)
By:
----------------------------------
Name: ________________________
Title: ________________________
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and confirms that the Certificate
referred to in this Transferee Certificate that are to be registered in its name
are and shall be held solely for the benefit of the above Transferee.
By:
----------------------------------
Name: ________________________
Title: ________________________
F-2-2
<PAGE>
ANNEX 1 TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies to [name of Transferor] (the "Transferor")
and Norwest Bank Minnesota, National Association, as Certificate Registrar, with
respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificate") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex as
follows:
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 ("Rule 144A") under the Securities Act of 1933, as amended
because (i) the Transferee owned and/or invested on a discretionary basis
$___________ / $___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) [The 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, the Transferee must own and/or
invest on, a discretionary basis at least $10,000,000 in securities or is acting
in a riskless principal transaction on behalf of a qualified institutional
investor.] 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, as amended.
o Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months
F-2-3
<PAGE>
preceding such date of sale for a foreign bank or equivalent
institution.
o Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan association
or equivalent institution.
o Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
o Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
o State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
o ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended.
o Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
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.)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
F-2-4
<PAGE>
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
___ __ Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and
F-2-5
<PAGE>
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
By:
----------------------------------
Name: _______________________
Title: _______________________
_______________________
Date: _______________________
F-2-6
<PAGE>
ANNEX 2 TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies to [name of Transferor] (the "Transferor")
and Norwest Bank Minnesota, National Association, as Certificate Registrar, with
respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificate") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex as
follows:
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, as amended ("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, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
o The Transferee owned and/or invested on a discretionary basis $_______
in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
o The Transferee is part of a Family of Investment Companies which owned
in the aggregate $_______ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
F-2-7
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
6. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ __ Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
7. 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
F-2-8
<PAGE>
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
F-2-9
<PAGE>
8. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
______________________________________
______________________________________
Print Name of Transferee or Adviser
By:
----------------------------------
Name: ____________________
Title: ____________________
IF AN ADVISER:
______________________________________
Print Name of Transferee
Date: ________________________________
F-2-10
<PAGE>
EXHIBIT F-3
FORM OF TRANSFEREE CERTIFICATE
FOR non-QIBs
______ __, 199_
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificate, Series 1998-C1-CTL,
(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 March 30, 1998 (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 March 1, 1998,
among Merrill Lynch Mortgage Investors, Inc., as depositor (the "Depositor"),
GMAC Commercial Mortgage Corporation, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, and Norwest Bank Minnesota, National
Association. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the Trustee
is obligated so to register or qualify the Certificates and (c) the Certificates
may not be resold or transferred unless they are (i) registered pursuant to the
Securities Act and registered or
F-3-1
<PAGE>
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either (A)
certifications from both the Transferor and the Transferee (substantially in the
forms attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption,
together with copies of the certification(s) from the Transferor and/or
Transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed, and that the Transferred Certificate
will bear legends substantially to the following effect:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would
F-3-2
<PAGE>
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.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Certificates and distributions thereon, (c) the Pooling and
Servicing Agreement, and (d) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in Rule 501(a)(1),
(2), (3), (7) or (8) 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.
7. If the Transferee is proposing that the Certificates being acquired
should be registered in the name of a nominee, such nominee's name is specified
hereafter and the Transferee has caused the execution of the Nominee
Acknowledgment below.
Nominee (if any): _____________________________
Very truly yours,
------------------------------
(Transferee)
By:___________________________
Name:_________________________
Title:________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and confirms that the Certificate
referred to in this Transferee Certificate that are to be registered in its name
are and shall be held solely for the benefit of the above Transferee.
By: _________________________
Name:
Title:
F-3-3
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE LETTER
FOR TRANSFERS OF SUBORDINATED CERTIFICATES
TO NON-PLAN ENTITIES
_____ __, 199_
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL
(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 March 30, 1998 (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 March 1, 1998 (the "Pooling and Servicing Agreement"),
among Merrill Lynch Mortgage Investors, Inc., as depositor, GMAC Commercial
Mortgage Corporation, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, and Norwest Bank Minnesota, National Association, 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 (i) 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 (ii) the
Transferee is an insurance company general account, the Certificates are
eligible for exemptive relief under Section III of the Prohibited Transaction
Class Exemption 95-60 ("PTE 95-90"), and the conditions of Sections I, III and
IV of PTE 95-60 will be satisfied with respect to the transfer of the
Certificates.
G-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
date first written above.
[Name of Transferee]
By:___________________________
Name:_________________________
Title:________________________
G-1-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING CLASS R-I, R-II AND R-III CERTIFICATES
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, and represents and
warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"), a
corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the Merrill Lynch
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1998-C1-CTL, 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 March 1, 1998, among Merrill Lynch
Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, GMAC Commercial Mortgage Corporation, as
Special Servicer, and Norwest Bank Minnesota, National Association, as
Trustee.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
_____ _, 199_ and (ii) is acquiring the Class [R-I, R-II, R-III]
Certificates for its own account or for the account of another Owner from
which it has received an affidavit in substantially the same form as this
affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a Non-United States Person. For this
purpose, a "disqualified organization" means any of the following: (i) the
United States, any State or political subdivision thereof, any possession
of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except of the FHLMC, a majority of
its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Internal
Revenue Code of 1986, as amended (the "Code")) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to
the tax imposed by Section 511 of the Code on
H-1-1
<PAGE>
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any
other Person so designated by the Trustee based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class [R-I, R-II, R-III]
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a
Class [R-I, R-II, R-III] Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings
set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in,
or under the laws of, the United States or any political subdivision
thereof, or an estate or trust whose income is includible in gross income
for United States federal income tax purposes regardless of its source, or
a trust if a court within the U.S. is able to exercise primary supervision
over the administration of the trust and one or more U.S. fiduciaries have
the authority to control all substantial decisions of the trust.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I, R-II, R-III] Certificates to disqualified
organizations under the Code that applies to all transfers of the Class
[R-I, R-II, R-III] Certificates; (ii) that such tax would be on the
transferor, or, if such transfer is through an agent (which person includes
a broker, nominee or middleman) for a disqualified organization transferee,
on the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such
person an affidavit that the transferee is not a disqualified organization
and, at the time of transfer, such person does not have actual knowledge
that the affidavit is false; and (iv) that the Class [R-I, R-II, R-III]
Certificates may be "noneconomic residual interests" within the meaning of
Treasury regulation section 1.860E-I(c)(2) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant
purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I, R-II, R-III] Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted
Transferee is the record
H-1-2
<PAGE>
holder of an interest in such entity. For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.
5. That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class [R-I, R-II, R-III] Certificate unless
the transferee, or the transferee's agent, delivers to the Trustee, among
other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I, R-II,
R-III] Certificates will only be owned, directly or indirectly, by
Permitted Transferees.
7. That the Owner's taxpayer identification number is _____________.
8. That the Owner has reviewed the restrictions set forth on the face
of the Class [R-I, R-II, R-III] Certificates and the provisions of Section
5.02 of the Pooling and Servicing Agreement under which the Class [R-I,
R-II, R-III] Certificates were issued (and, in particular, the Owner is
aware that such Section authorizes the Trustee to deliver payments to a
person other than the Owner and negotiate a mandatory sale by the Trustee
in the event that the Owner holds such Certificate in violation of Section
5.02); and that the Owner expressly agrees to be bound by and to comply
with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class
[R-I, R-II, R-III] Certificates in order to impede the assessment or
collection of any tax.
10. That the Owner anticipates that it will, so long as it holds any
of the Class [R-I, R-II, R-III] Certificates, have sufficient assets to pay
any taxes owed by the holder of such Class [R-I, R-II, R-III] Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds any
of the Class [R-I, R-II, R-III] Certificates.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States
H-1-3
<PAGE>
taxes owed by it so long as any of the Certificates remain outstanding. In
this regard, the Owner hereby represents to and for the benefit of the
Person from whom it acquired the Class [R-I, R-II, R-III] Certificates that
the Owner intends to pay taxes associated with holding the Class [R-I,
R-II, R-III] Certificates as they become due, fully understanding that it
may incur tax liabilities in excess of any cash flows generated by the
Class [R-I, R-II, R-III] Certificates.
13. That the Owner is not acquiring the Class [R-I, R-II, R-III]
Certificates with the intent to transfer any of the Class [R-I, R-II,
R-III] Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Class [R-I, R-II, R-III]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II, R-III] Certificates remain
outstanding.
14. That Owner will, in connection with any transfer that it makes of
the Class [R-I, R-II, R-III] Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class [R-I, R-II, R-III] Certificates were issued
and will not consummate any such transfer if it knows, or knows facts that
should lead it to believe, that any such representations are false.
15. That Owner will, in connection with any transfer that it makes of
any Class [R-I, R-II, R-III] Certificate, deliver to the Certificate
Registrar an affidavit, which represents and warrants that it is not
transferring such Class [R-I, R-II, R-III] Certificate to impede the
assessment or collection of any tax and that it has no actual knowledge
that the proposed transferee: (i) has insufficient assets to pay any taxes
owed by such transferee as holder of such Class [R-I, R-II, R-III]
Certificate; (ii) may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II, R-III] Certificates remain
outstanding; and (iii) is not a "Permitted Transferee".
H-1-4
<PAGE>
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its [Title of Officer] and Authorized Signatory, attested by its
[Assistant] Secretary, this ____ day of _____, 199_.
[NAME OF OWNER]
By:________________________________
[Name of Officer]
[Title of Officer]
- -------------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____ 199_.
--------------------------------------
NOTARY PUBLIC
COUNTY OF ______________
STATE OF _______________
My Commission expires the
____ day of _____________, 19__.
H-1-5
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING CLASS R-I, R-II AND R-III CERTIFICATES
__________ __, 199_
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL, 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 March 1, 1998, among
Merrill Lynch Mortgage Investors, Inc., as depositor, GMAC Commercial Mortgage
Corporation, as master servicer, GMAC Commercial Mortgage Corporation, as
special servicer, and Norwest Bank Minnesota, National Association, as trustee.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby represents
and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Class [R-I,
R-II, R-III] Certificates by the
H-2-1
<PAGE>
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 H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury Regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Class [R-I, R-II, R-III] Certificates may not be respected for United States
income tax purposes (and the Transferor may continue to be liable for United
States income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
Transferor: _____________________
By:______________________________
Name:____________________________
Title:___________________________
H-2-2
<PAGE>
Exhibit I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
_____________ __, 199_
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
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 March 1, 1998 relating to Merrill Lynch Mortgage
Investors Inc., Mortgage Pass-Through Certificates, Series 1998-C1-CTL (the
"Agreement"). Any term with initial capital letters not otherwise defined in
this notice has the meaning given such term in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________ as Special Servicer will become
final if certain conditions are met and if neither of you deliver to Norwest
Bank Minnesota, National Association, the trustee under the Agreement (the
"Trustee"), within 45 days after the date of the delivery of this notice to you,
a written notice stating that if the person designated to become the Special
Servicer were to serve as the Special Servicer, then the rating or ratings of
one or more Classes of the Certificates would be qualified, downgraded or
withdrawn.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee.
Very truly yours,
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: ______________________________
Title: ____________________________
I-1-2
<PAGE>
Receipt acknowledged:
Duff & Phelps Standard & Poor's Ratings Moody's Investors
Credit Rating Co. Agency Service, Inc.
By:_________________ By:_________________ By:_________________
Title:______________ Title:______________ Title:______________
Date:_______________ Date:_______________ Date:_______________
I-1-3
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
___________ __, 199_
Norwest Bank Minnesota, N.A.
11000 Broken Land Parkway
Columbia, MD 21044-3562
Attention: Corporate Trust Services (CMBS)
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as of
March 1, 1998 relating to Merrill Lynch Mortgage Investors Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL (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: _______________________
I-2-1
<PAGE>
EXHIBIT J
[RESERVED]
J-1-1
<PAGE>
EXHIBIT K
Form of Schedule of Certificateholders
Initial
Class Certificate Balance Name of Holder Address
----- ------------------- -------------- --------
K-1
<PAGE>
EXHIBIT M
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: Merrill Lynch Mortgage Investors, Inc., Series 1998-C1-CTL
In accordance with Section 3.15 of the Pooling and Servicing Agreement.
dated as of March 1, 1998 (the "Pooling and Servicing Agreement"), among Merrill
Lynch Mortgage Investors, Inc. as depositor (the "Depositor"), GMAC Commercial
Mortgage Corporation, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, and Norwest Bank Minnesota, National Association as trustee
(in such capacity, the "Trustee"), with respect to the Merrill Lynch Mortgage
Investors, Inc. Mortgage Pass-Through Certificates, Series 1998-C1-CTL (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling
and Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting
it in making the evaluation described in paragraph 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever,
in whole or in part; provided that the undersigned may provide
all or any part of the Information to any other person or entity
that holds or is contemplating the purchase of any Certificate or
interest therein, but only if such person or entity confirms in
writing such ownership interest or prospective ownership interest
and agrees to keep it confidential.
M-1
<PAGE>
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or
the Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust for any loss,
liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A CERTIFICATE]
By:______________________________________
Name:
Title:
M-2
<PAGE>
EXHIBIT N
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
[TRUSTEE]
Re: Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL (the "Certificates").
In accordance with Section 3.15 of the Pooling and Servicing Agreement,
dated as of March 1, 1998 (the "Pooling and Servicing Agreement"), among Merrill
Lynch Mortgage Investors, Inc., as depositor (the "Depositor"), GMAC Commercial
Mortgage Corporation as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, and Norwest Bank Minnesota, National Association as trustee
(in such capacity, the "Trustee"), with respect to the Merrill Lynch Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1998-C1-CTL (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class
__ Certificates.
2. The undersigned is requesting the information identified on
the schedule attached hereto pursuant to Section 3.15 of the
Pooling and Servicing Agreement (the "Information") for use
in evaluating such possible investment.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep
the Information confidential (except from such outside
persons as are assisting it in making the investment
decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of
the Trustee, be disclosed by the undersigned or by its
officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any
manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any
provision of the Securities Act of 1933, as amended (the
"Securities Act"), or the Securities Exchange Act of 1934,
as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
N-1
<PAGE>
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall
indemnify the Depositor, the Trustee and the Trust for any
loss, liability or expense incurred thereby with respect to
any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:________________________________
Name:
Title:
N-2
<PAGE>
EXHIBIT O
REO STATUS REPORT
as of ____________________
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or P8 P7 P37 P39 P38
- -------------------------------------------------------------------------------------------------------------------------
S63 (a) (b) (c) (d)
- -------------------------------------------------------------------------------------------------------------------------
PROSPECTUS SHORT NAME PROPE CITY STATE SQ FT PAID SCHEDULED TOTAL TOTAL OTHER
ID (WHEN RTY OR THRU LOAN P&I EXPENSES ADVANCES
APPROPRIATE) TYPE UNITS DATE BALANCE ADVANCES TO DATE (TAXES &
TO DATE ESCROW)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
S4 P25 P11 P58 P54 P81 P74 P75
- ---------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (k) (j) (f)=(k/j) (g)
- ---------------------------------------------------------------------------------------------------------------------
PROSPECTUS TOTAL CURRENT MATURITY LTM LTM CAP VALUATION VALUE APPRAISAL
ID EXPOSURE MONTHLY DATE NOI NOI / RATE DATE USING BPO OR
P&I DATE DSC ASSIGN NOI & INTERNAL
CAP RATE VALUE**
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------
S4 P35 P77 P82 P79
- -----------------------------------------------------------------------------------------------------
(h)=(.92*g) (i)=(g/e)
- -----------------------------------------------------------------------------------------------------
PROSPECTUS LOSS ESTIMATED TOTAL TRANSFER REO PENDING
ID USING RECOVERY APPRAISAL DATE AQUISITION RESOLUTION COMMENTS
92% % REDUCTION DATE DATE
APPR. OR REALIZED
BPO (f)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
O-1
<PAGE>
EXHIBIT Q
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 OR S63 P8 P7 P37 P39
- ------------------------------------------------------------------------------------------------------------------------------------
(A) (B) (C)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SHORT NAME PAID SCHEDULED TOTAL P&I TOTAL
PROSPECTUS (WHEN PROPERTY SQ FT OR THRU LOAN ADVANCES EXPENSES
ID APPROPRIATE) TYPE CITY STATE UNITS DATE BALANCE TO DATE TO DATE
- ------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual or Trailing 12 months
- ------------------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan file using abreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification,
DPO - Discount Payoff, NS - Note Sale, BK - Bankrupcy, PP - Payment Plan,
TBD - To Be Determined etc...)
- ------------------------------------------------------------------------------------------------------------------------------------
It is possible to combine the status codes if the loan is going in more
than one direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
- ------------------------------------------------------------------------------------------------------------------------------------
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
- ------------------------------------------------------------------------------------------------------------------------------------
*** How to deterime the cap rate is agreed upon by Underwriter and special
services - to be provided by a third party
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 P38 P25 P10 P11 P58 P54 P55 P81 P74
- ------------------------------------------------------------------------------------------------------------------------------------
(d) (e)=a+b+c+d (f)=P38/P81
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Other Value
Advances Current Current using NOI
Prospectus (Taxes & Total Monthly Interest Maturity LTM NOI Cap Rate & Cap Valuation
ID Escrow) Exposure P&I Rate Date Date LTM NOI LTM DSCR Assigned Rate Date
- ------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
S4 P75 P35 P77 P79 P42 P82 P76
- -----------------------------------------------------------------------------------------------------------------------------
(g)=(.92*f)-e (h)=(g/e)
- -----------------------------------------------------------------------------------------------------------------------------
APPRAISAL TOTAL
BPO OR LOSS USING ESTIMATED APPRAISAL FCL EXPECTED
PROSPECTUS INTERNAL 92% APPR. RECOVERY REDUCTION TRANSFER RESOLUTION START FCL SALE WORKOUT
ID VALUE** OR BPO (F) % REALIZED DATE DATE DATE DATE STRATEGY COMMENTS
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
- ----------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual or Trailing 12 m
- ----------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan file using abr etc...
- ----------------------------------------------------------------------------------------------------------------------------
It is possible to combine the status codes if the loan is goi
- ----------------------------------------------------------------------------------------------------------------------------
** App - Appraisal, BPO - Broker opinion, Int. - Internal Va
- ----------------------------------------------------------------------------------------------------------------------------
*** How to deterime the cap rate is agreed upon by Underwriter and special
services - to be provided by a third party
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Q-1
<PAGE>
EXHIBIT R
HISTORICAL LOAN MODIFICATION REPORT
AS OF _________________
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 P49 P48 P7* P7* P50* P50* P25*
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
BALANCE BALANCE AT
WHEN THE
MOD / SENT TO EFFECTIVE # MTHS
PROSPECTUS EXTENTION EFFECT SPECIAL DATE OF OLD FOR RATE NEW OLD
ID CITY STATE FLAG DATE SERVICER REHABILITATION RATE CHANGE RATE P&I
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ---------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line it should not change in the future. Only new modifications should be added.
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
TOTAL FOR ALL LOANS:
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL FOR LOANS IN CURRENT MONTH:
- ---------------------------------------------------------------------------------------------------------------------------
# OF LOANS $ BALANCE
- ---------------------------------------------------------------------------------------------------------------------------
MODIFICATIONS:
- ---------------------------------------------------------------------------------------------------------------------------
MATURITY DATE EXTENTIONS:
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL:
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should not change on this report once assigned.
- ---------------------------------------------------------------------------------------------------------------------------
(1) Actual principal loss taken by bonds
- ---------------------------------------------------------------------------------------------------------------------------
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
- ---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
S4 P25* P11* P11* P47
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
(2) EST.
FUTURE
TOTAL # INTEREST
MTHS (1) LOSS TO
FOR REALIZED TRUST $
PROSPECTUS NEW OLD NEW CHANGE LOSS TO (RATE
ID P&I MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
TOTAL FOR ALL LOANS:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
TOTAL FOR LOANS IN CURRENT MONTH:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
MODIFICATIONS:
- ----------------------------------------------------------------------------------------------------------
MATURITY DATE EXTENTIONS:
- ----------------------------------------------------------------------------------------------------------
TOTAL:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
R-1
<PAGE>
EXHIBIT S
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD or DISCOUNTED PAYOFF)
as of ______________________
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7 P37 P39+P38
- -----------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f) (g)
- -----------------------------------------------------------------------------------------------------------------------------------
LATEST
APPRAISAL
SHORT NAME % OR EFFECT NET AMT
PROSPECTUS (WHEN PROPERTY RECEIVED BROKERS DATE OF SALES RECEIVED SCHEDULED TOTAL P&I TOTAL
ID APPROPRIATE) TYPE CITY STATE FROM SALE OPINION SALE PRICE FROM SALE BALANCE ADVANCED EXPENSE
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
- -----------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
TOTAL ALL LOANS:
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
CURRENT MONTH ONLY:
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
S4
- ---------------------------------------------------------------------------------------------------------
(h) (i)=d-(f+g+h) (k)=i-e (m) (n)=k+m (o)=n/e
- ---------------------------------------------------------------------------------------------------------
DATE MINOR
LOSS ADJ TOTAL LOSS LOSS % OF
PROSPECTUS SERVICING ACTUAL LOSSES PASSED MINOR ADJ PASSED WITH SCHEDULED
ID FEES EXPENSE NET PROCEEDS PASSED THRU THRU TO TRUST THRU ADJUSTMENT BALANCE
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
- ---------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
Total all Loans:
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Current Month Only:
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
S-1
<PAGE>
EXHIBIT T
FORM OF PUBLIC RATING REPORT
Tenant/Guarantor Credit Ratings Weighted Averages
<TABLE>
<CAPTION>
% of
Aggregate
Publicly
Number of Aggregate % of Rated Stated
Standard & Mortgage Principal Pool Principal Mortgage Remaining
Poor's Moody's Loans Balance Balance Balance Rate Term (mo.)
- ------ ------- ----- ------- ------- ------- ---- ----------
<S> <C>
AAA Aaa
AA Aa2
AA- Aa3
A+ A2
A A3
A No Public Rating
BBB+ Baa1
BBB No Public Rating
BBB- Baa3
Investment Grade Subtotal
BB+ Baa2
BB+ Ba1
BB+ Ba2
BB Ba2
BB No Public Rating
BB- No Public Rating
Non-Investment Grade
Subtotal
</TABLE>
PUBLICLY RATED TOTAL/WTD.AVG
NO AVAILABLE RATING TOTAL/WTD.AVG
TOTAL/WTD.AVG
T-1
<PAGE>
EXHIBIT U
FORM OF LOST NOTE AFFIDAVIT AND INDEMNITY
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
_______________, ______________, being duly sworn, deposes and says:
1. that he is an authorized signatory of [Insert Name of Seller] ("DAIWA");
2. that DAIWA is the owner and holder of a mortgage loan in the original
principal amount of $________ secured by a mortgage (the "Mortgage") on the
premises known as _____________________ located in _________;
3. (a) that DAIWA, after having conducted a diligent investigation of its
records and files, has been unable to locate the following original note and
believes that said original Note has been lost, misfiled, misplaced or destroyed
due to a clerical error:
a Note in the original sum of $________ made by ________, to
[Name of Payee], under date of ________ (the "Note");
4. that the note is now owned and held by DAIWA,
5. that the Note has not been paid off, satisfied, assigned, transferred,
encumbered, endorsed, pledged, hypothecated, or otherwise disposed of and that
the original Note has been either lost, misfiled, misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any right,
title, interest or claim in the Note except DAIWA;
7. upon assignment of the Note by DAIWA to Merrill Lynch Mortgage
Investors, Inc. (the "Depositor") and subsequent assignment by Depositor to the
Norwest Bank Minnesota National Association solely in its capacity of trustee
for the benefit of the Holders of Merrill Lynch Mortgage Investors, Inc.
Mortgage Pass-Through Certificate, Series 1998-C1-CTL (the "Trustee") (which
assignment may, at the discretion of the Depositor, be made directly by DAIWA to
the Trustee) DAIWA covenants and agrees (a) promptly to deliver to the Trustee
the original Note if it is subsequently found, and (b) to indemnity and hold
harmless the Trustee and its successors and assigns from and against any and all
costs, expenses and monetary losses arising as a result of
U-1
<PAGE>
DAIWA's or the Depositor's failure to deliver said original Note to the Trustee.
[INSERT NAME OF SELLER]
By:_______________________
Authorized Signatory
Sworn to before me this ___ day of ___________.
U-2
<PAGE>
EXHIBIT V
<TABLE>
<CAPTION>
LOAN PAYMENT NOTIFICATION REPORT
as of_____________
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------|----------------------------------------
S4 S55 S61 S58 P7 P8 P10 P11 P54 | SERVICER ESTIMATED INFORMATION
- -------------------------------------------------------------------------------------------|----------------------------------------
PROSPECTUS SHORT NAME PROPERTY SCHEDULED PAID CURRENT MATURITY LTM | YIELD EXPECTED EXPECTED
ID (WHEN TYPE STATE LOAN THRU INTEREST DATE DSCR | MAINTENANCE PAYMENT DISTRIBUTION
APPROPRIATE) BALANCE DATE RATE | DATE DATE
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
Scheduled Payments |
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
Unscheduled Payments |
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
Total: $ |
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
- -------------------------------------------------------------------------------------------|----------------------------------------
THE BORROWER HAS ONLY REQUESTED THE INFORMATION TO PAY-OFF. THIS DOES NOT INDICATE A DEFINITE PAYMENT.
</TABLE>
V-1
<PAGE>
EXHIBIT W
Form of CSSA Loan File Report
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
<TABLE>
<CAPTION>
FIELD FORMAT CSSA
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS LOAN
- ---------- ------ ---- ------- -------------------- ----
<S> <C> <C> <C> <C> <C>
Transaction ID 1 AN XXX97001 S1, P1
Loan ID 2 AN XXX9701A S3, P3
Prospectus Loan ID 3 AN 00000000012345 From Offering Document S4, P4
Property ID 4 AN 123 Should contain Prospectus ID and
property identifier, e.g., 1001-1, 1000-2
Distribution Date 5 AN Text P5
Property Status 6 AN 1 1=FCL, 2=Defeased, 4=Partial Release
Current Allocated Percentage 7 Numeric 50
Current Allocated Loan Amount 8 Numeric 5,900,000 P7
Other Escrow/Reserve Balances 9 S77
Most Recent Appraisal Date 10 AN YYYYMMDD P74
Most Recent Appraisal Value 11 Numeric P75
Date Asset Is Expected to Be
Resolved 12 AN YYYYMMDD Could be different dates for different
properties if foreclosing P79
Foreclosure Date 13 AN YYYYMMDD P42
REO Date 14 AN YYYYMMDD P43
Occupancy % 15 Numeric 100 Map to "Most Recent Fiscal YTD Phys. Occ."
in CSSA 100. Kept in Fin File? P71
Date Lease Rollover Review 16 AN YYYYMMDD
%/# Sq. Feet expiring 1-12 months 17 Numeric
%/# Sq. Feet expiring 13-24 months 18 Numeric
%/# Sq. Feet expiring 25-36 months 19 Numeric
%/# Sq. Feet expiring 37-48 months 20 Numeric
%/# Sq. Feet expiring 49-60 months 21 Numeric
Largest Tenant 22 AN Text Not necessary for multifamily
Square Feet of Largest Tenant 23 Numeric 15000
Date of Last Inspection 24 AN YYYYMMDD
Preceding FY Financial As of Date 25 AN YYYYMMDD P58
Preceding Fiscal Year Revenue 26 Numeric P52
Preceding Fiscal Year Expenses 27 Numeric P53
Preceding Fiscal Year NOI 28 Numeric P54
</TABLE>
"PERIODIC UPDATE FILE" - AVAILABLE MONTHLY OR AS PER REQUIRED BY DOCUMENTS.
Page 1 of 1
W-1
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
<TABLE>
<CAPTION>
FIELD FORMAT CSSA
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS LOAN
- ---------- ------ ---- ------- -------------------- ----
<S> <C> <C> <C> <C> <C>
Preceding Fiscal Year Debt
Service Amt 29 Numeric P55
Preceding Fiscal Year DSCR 30 Numeric P56
Preceding Fiscal Year Physical
Occupancy 31 Numeric P57
Sec Preceding FY Financial As
of Date 32 AN YYYYMMDD P65
Second Preceding FY Revenue 33 Numeric P59
Second Preceding FY Expenses 34 Numeric P60
Second Preceding FY NOI 35 Numeric P61
Second Preceding FY Debt Service 36 Numeric P62
Second Preceding FY DSCR 37 Numeric P63
Sec Preceding FY Physical Occupancy 38 Numeric P64
Trailing Start Date 39 AN YYYYMMDD Can be Year to Date if Trailing Information is
not available P65
Trailing End Date 40 AN YYYYMMDD
Trailing FY Revenue 41 Numeric P59
Trailing FY Expenses 42 Numeric P60
Trailing FY NOI 43 Numeric P61
Trailing FY Debt Service 44 Numeric P62
Trailing FY DSCR 45 Numeric P63
Trailing Physical Occupancy 46 Numeric P64
</TABLE>
"PERIODIC UPDATE FILE" - AVAILABLE MONTHLY OR AS PER REQUIRED BY DOCUMENTS.
Page 2 of 2
W-2
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
FIELD NAME RELATIONSHIP TO CORRESPONDING CSSA 100.1 FIELD
- ---------- ----------------------------------------------
Transaction ID Same as 100.1
Loan ID Same as 100.1
Prospectus Loan ID Same as 100.1
Property ID
Distribution Date Same as 100.1
Property Status
Current Allocated Percentage
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Other Escrow/Reserve Balances If any property populated, then S-77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate
P74 with date, otherwise, "Various"
Most Recent Appraisal Value Roll-up to 100.1 if populated
Date Asset is Expected to
Be Resolved If Multi-Prop, latest date from affiliated
properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate
P42 with date, otherwise, "Various"
REO Date If Multi-Prop, and all same then populate
P43 with date, otherwise, "Various"
Occupancy % Weighted Average based on CALAmt and
ALAmt.@Sec.
Date Lease Rollover Review
%/# Sq. Feet expiring 1-12 months
%/# Sq. Feet expiring 13-24 months
%/# Sq. Feet expiring 25-36 months
%/# Sq. Feet expiring 37-48 months
%/# Sq. Feet expiring 49-60 months
Largest Tenant
Square Feet of Largest Tenant
Date of Last Inspection
Preceding FY Financial As of Date If Multi-Prop, and all same then populate
P58 with date, otherwise, "Various".
Preceding Fiscal Year Revenue Roll-up to 100.1 if populated
Preceding Fiscal Year Expenses Roll-up to 100.1 if populated
Preceding Fiscal Year NOI Roll-up to 100.1 if populated
"PERIODIC UPDATE FILE" - AVAILABLE MONTHLY OR AS PER REQUIRED BY DOCUMENTS.
Page 3 of 3
W-3
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
FIELD NAME RELATIONSHIP TO CORRESPONDING CSSA 100.1 FIELD
- ---------- ----------------------------------------------
Preceding Fiscal Year Debt
Service Amt. Weighted Average based on ALAmt@Sec.
Preceding Fiscal Year DSCR Weighted Average based on ALAmt@Sec.
Preceding Fiscal Year Physical
Occupancy Weighted Average based on ALAmt@Sec.
Sec Preceding FY Financial
As of Date If Multi-Prop, and all same then populate P65
with date, otherwise, "Various".
Second Preceding FY Revenue Roll-up to 100.1 if populated
Second Preceding FY Expenses Roll-up to 100.1 if populated
Second Preceding FY NOI Roll-up to 100.1 if populated
Second Preceding FY Debt Service Weighted Average based on ALAmt@Sec.
Second Preceding FY DSCR Weighted Average based on ALAmt@Sec.
Second Preceding FY Physical
Occupancy Weighted Average based on ALAmt@Sec.
Trailing Start Date If Multi-Prop, and all same then populate P65
with date, otherwise, "Various".
Trailing End Date
Trailing FY Revenue Roll-up to 100.1 if populated
Trailing FY Expenses Roll-up to 100.1 if populated
Trailing FY NOI Roll-up to 100.1 if populated
Trailing FY Debt Service Weighted Average based on ALAmt@Sec.
Trailing FY DSCR Weighted Average based on ALAmt@Sec.
Trailing FY Physical Occupancy Weighted Average based on ALAmt@Sec.
"PERIODIC UPDATE FILE" - AVAILABLE MONTHLY OR AS PER REQUIRED BY DOCUMENTS.
Page 4 of 4
W-4
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
$0.00 $0.00
Apr-1998 $0.00 $201,148.35 $60,344.50 $20,114.85 $120,689.00
May-1998 $120,689.00 $0.00 $60,344.50 $0.00 $60,344.50
Jun-1998 $60,344.50 $0.00 $60,344.50 $0.00 $0.00
Jul-1998 $0.00 $181,033.51 $60,344.50 $99.25 $120,589.76
Aug-1998 $120,589.76 $0.00 $60,294.88 $0.00 $60,294.88
Sep-1998 $60,294.88 $0.00 $60,294.88 $0.00 $0.00
Oct-1998 $0.00 $180,884.64 $60,294.88 $101.20 $120,488.56
Nov-1998 $120,488.56 $0.00 $60,244.28 $0.00 $60,244.28
Dec-1998 $60,244.28 $0.00 $60,244.28 $0.00 $0.00
Jan-1999 $0.00 $180,732.84 $60,244.28 $103.18 $120,385.38
Feb-1999 $120,385.38 $0.00 $60,192.69 $0.00 $60,192.69
Mar-1999 $60,192.69 $0.00 $60,192.69 $0.00 $0.00
Apr-1999 $0.00 $180,578.06 $60,192.69 $105.23 $120,280.14
May-1999 $120,280.14 $0.00 $60,140.07 $0.00 $60,140.07
Jun-1999 $60,140.07 $0.00 $60,140.07 $0.00 $0.00
Jul-1999 $0.00 $180,420.22 $60,140.07 $107.29 $120,172.86
Aug-1999 $120,172.86 $0.00 $60,086.43 $0.00 $60,086.43
Sep-1999 $60,086.43 $0.00 $60,086.43 $0.00 $0.00
Oct-1999 $0.00 $180,259.29 $60,086.43 $109.40 $120,063.46
Nov-1999 $120,063.46 $0.00 $60,031.73 $0.00 $60,031.73
Dec-1999 $60,031.73 $0.00 $60,031.73 $0.00 $0.00
Jan-2000 $0.00 $180,095.18 $60,031.73 $111.55 $119,951.90
Feb-2000 $119,951.90 $0.00 $59,975.95 $0.00 $59,975.95
Mar-2000 $59,975.95 $0.00 $59,975.95 $0.00 $0.00
Apr-2000 $0.00 $179,927.85 $59,975.95 $113.74 $119,838.16
May-2000 $119,838.16 $0.00 $59,919.08 $0.00 $59,919.08
Jun-2000 $59,919.08 $0.00 $59,919.08 $0.00 $0.00
Jul-2000 $0.00 $179,757.23 $59,919.08 $115.99 $119,722.16
Aug-2000 $119,722.16 $0.00 $59,861.08 $0.00 $59,861.08
Sep-2000 $59,861.08 $0.00 $59,861.08 $0.00 $0.00
Oct-2000 $0.00 $179,583.25 $59,861.08 $118.27 $119,603.90
Nov-2000 $119,603.90 $0.00 $59,801.95 $0.00 $59,801.95
Dec-2000 $59,801.95 $0.00 $59,801.95 $0.00 $0.00
Jan-2001 $0.00 $179,405.84 $59,801.95 $120.59 $119,483.30
Feb-2001 $119,483.30 $0.00 $59,741.65 $0.00 $59,741.65
Mar-2001 $59,741.65 $0.00 $59,741.65 $0.00 $0.00
Apr-2001 $0.00 $179,224.95 $59,741.65 $122.98 $119,360.32
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
May-2001 $119,360.32 $0.00 $59,680.16 $0.00 $59,680.16
Jun-2001 $59,680.16 $0.00 $59,680.16 $0.00 $0.00
Jul-2001 $0.00 $179,040.49 $59,680.16 $125.39 $119,234.94
Aug-2001 $119,234.94 $0.00 $59,617.47 $0.00 $59,617.47
Sep-2001 $59,617.47 $0.00 $59,617.47 $0.00 $0.00
Oct-2001 $0.00 $178,852.41 $59,617.47 $127.86 $119,107.08
Nov-2001 $119,107.08 $0.00 $59,553.54 $0.00 $59,553.54
Dec-2001 $59,553.54 $0.00 $59,553.54 $0.00 $0.00
Jan-2002 $0.00 $178,660.62 $59,553.54 $130.36 $118,976.72
Feb-2002 $118,976.72 $0.00 $59,488.36 $0.00 $59,488.36
Mar-2002 $59,488.36 $0.00 $59,488.36 $0.00 $0.00
Apr-2002 $0.00 $178,465.07 $59,488.36 $132.93 $118,843.78
May-2002 $118,843.78 $0.00 $59,421.89 $0.00 $59,421.89
Jun-2002 $59,421.89 $0.00 $59,421.89 $0.00 $0.00
Jul-2002 $0.00 $178,265.66 $59,421.89 $135.55 $118,708.22
Aug-2002 $118,708.22 $0.00 $59,354.11 $0.00 $59,354.11
Sep-2002 $59,354.11 $0.00 $59,354.11 $0.00 $0.00
Oct-2002 $0.00 $178,062.33 $59,354.11 $138.22 $118,570.00
Nov-2002 $118,570.00 $0.00 $59,285.00 $0.00 $59,285.00
Dec-2002 $59,285.00 $0.00 $59,285.00 $0.00 $0.00
Jan-2003 $0.00 $177,855.01 $59,285.00 $610.97 $117,959.04
Feb-2003 $117,959.04 $0.00 $58,979.52 $0.00 $58,979.52
Mar-2003 $58,979.52 $0.00 $58,979.52 $0.00 $0.00
Apr-2003 $0.00 $176,938.56 $58,979.52 $622.98 $117,336.06
May-2003 $117,336.06 $0.00 $58,668.03 $0.00 $58,668.03
Jun-2003 $58,668.03 $0.00 $58,668.03 $0.00 $0.00
Jul-2003 $0.00 $176,004.09 $58,668.03 $635.24 $116,700.82
Aug-2003 $116,700.82 $0.00 $58,350.41 $0.00 $58,350.41
Sep-2003 $58,350.41 $0.00 $58,350.41 $0.00 $0.00
Oct-2003 $0.00 $175,051.23 $58,350.41 $647.74 $116,053.08
Nov-2003 $116,053.08 $0.00 $58,026.54 $0.00 $58,026.54
Dec-2003 $58,026.54 $0.00 $58,026.54 $0.00 $0.00
Jan-2004 $0.00 $174,079.63 $58,026.54 $660.49 $115,392.60
Feb-2004 $115,392.60 $0.00 $57,696.30 $0.00 $57,696.30
Mar-2004 $57,696.30 $0.00 $57,696.30 $0.00 $0.00
Apr-2004 $0.00 $173,088.90 $57,696.30 $673.48 $114,719.12
May-2004 $114,719.12 $0.00 $57,359.56 $0.00 $57,359.56
Jun-2004 $57,359.56 $0.00 $57,359.56 $0.00 $0.00
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jul-2004 $0.00 $172,078.69 $57,359.56 $686.73 $114,032.40
Aug-2004 $114,032.40 $0.00 $57,016.20 $0.00 $57,016.20
Sep-2004 $57,016.20 $0.00 $57,016.20 $0.00 $0.00
Oct-2004 $0.00 $171,048.60 $57,016.20 $700.24 $113,332.16
Nov-2004 $113,332.16 $0.00 $56,666.08 $0.00 $56,666.08
Dec-2004 $56,666.08 $0.00 $56,666.08 $0.00 $0.00
Jan-2005 $0.00 $169,998.24 $56,666.08 $714.02 $112,618.14
Feb-2005 $112,618.14 $0.00 $56,309.07 $0.00 $56,309.07
Mar-2005 $56,309.07 $0.00 $56,309.07 $0.00 $0.00
Apr-2005 $0.00 $168,927.22 $56,309.07 $728.07 $111,890.08
May-2005 $111,890.08 $0.00 $55,945.04 $0.00 $55,945.04
Jun-2005 $55,945.04 $0.00 $55,945.04 $0.00 $0.00
Jul-2005 $0.00 $167,835.12 $55,945.04 $742.38 $111,147.70
Aug-2005 $111,147.70 $0.00 $55,573.85 $0.00 $55,573.85
Sep-2005 $55,573.85 $0.00 $55,573.85 $0.00 $0.00
Oct-2005 $0.00 $166,721.54 $55,573.85 $756.99 $110,390.70
Nov-2005 $110,390.70 $0.00 $55,195.35 $0.00 $55,195.35
Dec-2005 $55,195.35 $0.00 $55,195.35 $0.00 $0.00
Jan-2006 $0.00 $165,586.05 $55,195.35 $771.90 $109,618.80
Feb-2006 $109,618.80 $0.00 $54,809.40 $0.00 $54,809.40
Mar-2006 $54,809.40 $0.00 $54,809.40 $0.00 $0.00
Apr-2006 $0.00 $164,428.21 $54,809.40 $787.07 $108,831.74
May-2006 $108,831.74 $0.00 $54,415.87 $0.00 $54,415.87
Jun-2006 $54,415.87 $0.00 $54,415.87 $0.00 $0.00
Jul-2006 $0.00 $163,247.60 $54,415.87 $802.55 $108,029.18
Aug-2006 $108,029.18 $0.00 $54,014.59 $0.00 $54,014.59
Sep-2006 $54,014.59 $0.00 $54,014.59 $0.00 $0.00
Oct-2006 $0.00 $162,043.76 $54,014.59 $818.35 $107,210.82
Nov-2006 $107,210.82 $0.00 $53,605.41 $0.00 $53,605.41
Dec-2006 $53,605.41 $0.00 $53,605.41 $0.00 $0.00
Jan-2007 $0.00 $160,816.23 $53,605.41 $834.46 $106,376.36
Feb-2007 $106,376.36 $0.00 $53,188.18 $0.00 $53,188.18
Mar-2007 $53,188.18 $0.00 $53,188.18 $0.00 $0.00
Apr-2007 $0.00 $159,564.55 $53,188.18 $850.87 $105,525.50
May-2007 $105,525.50 $0.00 $52,762.75 $0.00 $52,762.75
Jun-2007 $52,762.75 $0.00 $52,762.75 $0.00 $0.00
Jul-2007 $0.00 $158,288.24 $52,762.75 $867.61 $104,657.88
Aug-2007 $104,657.88 $0.00 $52,328.94 $0.00 $52,328.94
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Sep-2007 $52,328.94 $0.00 $52,328.94 $0.00 $0.00
Oct-2007 $0.00 $156,986.83 $52,328.94 $884.69 $103,773.20
Nov-2007 $103,773.20 $0.00 $51,886.60 $0.00 $51,886.60
Dec-2007 $51,886.60 $0.00 $51,886.60 $0.00 $0.00
Jan-2008 $0.00 $155,659.80 $51,886.60 $1,461.42 $102,311.78
Feb-2008 $102,311.78 $0.00 $51,155.89 $0.00 $51,155.89
Mar-2008 $51,155.89 $0.00 $51,155.89 $0.00 $0.00
Apr-2008 $0.00 $153,467.68 $51,155.89 $1,490.17 $100,821.62
May-2008 $100,821.62 $0.00 $50,410.81 $0.00 $50,410.81
Jun-2008 $50,410.81 $0.00 $50,410.81 $0.00 $0.00
Jul-2008 $0.00 $151,232.43 $50,410.81 $1,519.50 $99,302.12
Aug-2008 $99,302.12 $0.00 $49,651.06 $0.00 $49,651.06
Sep-2008 $49,651.06 $0.00 $49,651.06 $0.00 $0.00
Oct-2008 $0.00 $148,953.19 $49,651.06 $1,549.39 $97,752.74
Nov-2008 $97,752.74 $0.00 $48,876.37 $0.00 $48,876.37
Dec-2008 $48,876.37 $0.00 $48,876.37 $0.00 $0.00
Jan-2009 $0.00 $146,629.12 $48,876.37 $1,579.87 $96,172.88
Feb-2009 $96,172.88 $0.00 $48,086.44 $0.00 $48,086.44
Mar-2009 $48,086.44 $0.00 $48,086.44 $0.00 $0.00
Apr-2009 $0.00 $144,259.32 $48,086.44 $1,610.96 $94,561.92
May-2009 $94,561.92 $0.00 $47,280.96 $0.00 $47,280.96
Jun-2009 $47,280.96 $0.00 $47,280.96 $0.00 $0.00
Jul-2009 $0.00 $141,842.89 $47,280.96 $1,642.65 $92,919.28
Aug-2009 $92,919.28 $0.00 $46,459.64 $0.00 $46,459.64
Sep-2009 $46,459.64 $0.00 $46,459.64 $0.00 $0.00
Oct-2009 $0.00 $139,378.92 $46,459.64 $1,674.96 $91,244.32
Nov-2009 $91,244.32 $0.00 $45,622.16 $0.00 $45,622.16
Dec-2009 $45,622.16 $0.00 $45,622.16 $0.00 $0.00
Jan-2010 $0.00 $136,866.47 $45,622.16 $1,707.91 $89,536.40
Feb-2010 $89,536.40 $0.00 $44,768.20 $0.00 $44,768.20
Mar-2010 $44,768.20 $0.00 $44,768.20 $0.00 $0.00
Apr-2010 $0.00 $134,304.59 $44,768.20 $1,741.53 $87,794.86
May-2010 $87,794.86 $0.00 $43,897.43 $0.00 $43,897.43
Jun-2010 $43,897.43 $0.00 $43,897.43 $0.00 $0.00
Jul-2010 $0.00 $131,692.30 $43,897.43 $1,775.79 $86,019.08
Aug-2010 $86,019.08 $0.00 $43,009.54 $0.00 $43,009.54
Sep-2010 $43,009.54 $0.00 $43,009.54 $0.00 $0.00
Oct-2010 $0.00 $129,028.62 $43,009.54 $1,810.72 $84,208.36
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov-2010 $84,208.36 $0.00 $42,104.18 $0.00 $42,104.18
Dec-2010 $42,104.18 $0.00 $42,104.18 $0.00 $0.00
Jan-2011 $0.00 $126,312.53 $42,104.18 $1,846.35 $82,362.00
Feb-2011 $82,362.00 $0.00 $41,181.00 $0.00 $41,181.00
Mar-2011 $41,181.00 $0.00 $41,181.00 $0.00 $0.00
Apr-2011 $0.00 $123,543.00 $41,181.00 $1,882.68 $80,479.32
May-2011 $80,479.32 $0.00 $40,239.66 $0.00 $40,239.66
Jun-2011 $40,239.66 $0.00 $40,239.66 $0.00 $0.00
Jul-2011 $0.00 $120,718.98 $40,239.66 $1,919.72 $78,559.60
Aug-2011 $78,559.60 $0.00 $39,279.80 $0.00 $39,279.80
Sep-2011 $39,279.80 $0.00 $39,279.80 $0.00 $0.00
Oct-2011 $0.00 $117,839.39 $39,279.80 $1,957.49 $76,602.10
Nov-2011 $76,602.10 $0.00 $38,301.05 $0.00 $38,301.05
Dec-2011 $38,301.05 $0.00 $38,301.05 $0.00 $0.00
Jan-2012 $0.00 $114,903.15 $38,301.05 $1,996.00 $74,606.10
Feb-2012 $74,606.10 $0.00 $37,303.05 $0.00 $37,303.05
Mar-2012 $37,303.05 $0.00 $37,303.05 $0.00 $0.00
Apr-2012 $0.00 $111,909.15 $37,303.05 $2,035.28 $72,570.82
May-2012 $72,570.82 $0.00 $36,285.41 $0.00 $36,285.41
Jun-2012 $36,285.41 $0.00 $36,285.41 $0.00 $0.00
Jul-2012 $0.00 $108,856.23 $36,285.41 $2,075.32 $70,495.50
Aug-2012 $70,495.50 $0.00 $35,247.75 $0.00 $35,247.75
Sep-2012 $35,247.75 $0.00 $35,247.75 $0.00 $0.00
Oct-2012 $0.00 $105,743.25 $35,247.75 $2,116.16 $68,379.34
Nov-2012 $68,379.34 $0.00 $34,189.67 $0.00 $34,189.67
Dec-2012 $34,189.67 $0.00 $34,189.67 $0.00 $0.00
Jan-2013 $0.00 $102,569.01 $34,189.67 $2,823.38 $65,555.96
Feb-2013 $65,555.96 $0.00 $32,777.98 $0.00 $32,777.98
Mar-2013 $32,777.98 $0.00 $32,777.98 $0.00 $0.00
Apr-2013 $0.00 $98,333.93 $32,777.98 $2,878.93 $62,677.02
May-2013 $62,677.02 $0.00 $31,338.51 $0.00 $31,338.51
Jun-2013 $31,338.51 $0.00 $31,338.51 $0.00 ($0.00)
Jul-2013 ($0.00) $94,015.52 $31,338.51 $2,935.57 $59,741.44
Aug-2013 $59,741.44 $0.00 $29,870.72 $0.00 $29,870.72
Sep-2013 $29,870.72 $0.00 $29,870.72 $0.00 $0.00
Oct-2013 $0.00 $89,612.15 $29,870.72 $2,993.33 $56,748.10
Nov-2013 $56,748.10 $0.00 $28,374.05 $0.00 $28,374.05
Dec-2013 $28,374.05 $0.00 $28,374.05 $0.00 $0.00
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jan-2014 $0.00 $85,122.14 $28,374.05 $3,052.23 $53,695.86
Feb-2014 $53,695.86 $0.00 $26,847.93 $0.00 $26,847.93
Mar-2014 $26,847.93 $0.00 $26,847.93 $0.00 $0.00
Apr-2014 $0.00 $80,543.79 $26,847.93 $3,112.28 $50,583.58
May-2014 $50,583.58 $0.00 $25,291.79 $0.00 $25,291.79
Jun-2014 $25,291.79 $0.00 $25,291.79 $0.00 $0.00
Jul-2014 $0.00 $75,875.36 $25,291.79 $3,173.51 $47,410.06
Aug-2014 $47,410.06 $0.00 $23,705.03 $0.00 $23,705.03
Sep-2014 $23,705.03 $0.00 $23,705.03 $0.00 $0.00
Oct-2014 $0.00 $71,115.08 $23,705.03 $3,235.95 $44,174.10
Nov-2014 $44,174.10 $0.00 $22,087.05 $0.00 $22,087.05
Dec-2014 $22,087.05 $0.00 $22,087.05 $0.00 $0.00
Jan-2015 $0.00 $66,261.15 $22,087.05 $3,299.64 $40,874.46
Feb-2015 $40,874.46 $0.00 $20,437.23 $0.00 $20,437.23
Mar-2015 $20,437.23 $0.00 $20,437.23 $0.00 $0.00
Apr-2015 $0.00 $61,311.71 $20,437.23 $3,364.56 $37,509.92
May-2015 $37,509.92 $0.00 $18,754.96 $0.00 $18,754.96
Jun-2015 $18,754.96 $0.00 $18,754.96 $0.00 $0.00
Jul-2015 $0.00 $56,264.89 $18,754.96 $3,430.75 $34,079.18
Aug-2015 $34,079.18 $0.00 $17,039.59 $0.00 $17,039.59
Sep-2015 $17,039.59 $0.00 $17,039.59 $0.00 $0.00
Oct-2015 $0.00 $51,118.77 $17,039.59 $3,498.24 $30,580.94
Nov-2015 $30,580.94 $0.00 $15,290.47 $0.00 $15,290.47
Dec-2015 $15,290.47 $0.00 $15,290.47 $0.00 $0.00
Jan-2016 $0.00 $45,871.40 $15,290.47 $3,567.07 $27,013.86
Feb-2016 $27,013.86 $0.00 $13,506.93 $0.00 $13,506.93
Mar-2016 $13,506.93 $0.00 $13,506.93 $0.00 $0.00
Apr-2016 $0.00 $40,520.79 $13,506.93 $3,637.26 $23,376.60
May-2016 $23,376.60 $0.00 $11,688.30 $0.00 $11,688.30
Jun-2016 $11,688.30 $0.00 $11,688.30 $0.00 $0.00
Jul-2016 $0.00 $35,064.91 $11,688.30 $3,708.81 $19,667.80
Aug-2016 $19,667.80 $0.00 $9,833.90 $0.00 $9,833.90
Sep-2016 $9,833.90 $0.00 $9,833.90 $0.00 $0.00
Oct-2016 $0.00 $29,501.69 $9,833.90 $3,781.79 $15,886.00
Nov-2016 $15,886.00 $0.00 $7,943.00 $0.00 $7,943.00
Dec-2016 $7,943.00 $0.00 $7,943.00 $0.00 $0.00
Jan-2017 $0.00 $23,829.01 $7,943.00 $3,856.21 $12,029.80
Feb-2017 $12,029.80 $0.00 $6,014.90 $0.00 $6,014.90
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-1
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #1 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Mar-2017 $6,014.90 $0.00 $6,014.90 $0.00 $0.00
Apr-2017 $0.00 $18,044.71 $6,014.90 $3,932.07 $8,097.74
May-2017 $8,097.74 $0.00 $4,048.87 $0.00 $4,048.87
Jun-2017 $4,048.87 $0.00 $4,048.87 $0.00 $0.00
Jul-2017 $0.00 $12,146.61 $4,048.87 $4,009.42 $4,088.32
Aug-2017 $4,088.32 $0.00 $2,044.16 $0.00 $2,044.16
Sep-2017 $2,044.16 $0.00 $2,044.16 $0.00 ($0.00)
Oct-2017 ($0.00) $6,132.47 $2,044.16 $4,088.31 $0.00
-------------------------------------------------------------------
10,581,382.22 10,440,578.35 140,803.87
-------------------------------------------------------------------
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-2
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #2
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #2 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
$0.00 $0.00
Apr-1998 $0.00 $621,107.81 $207,035.94 $673.79 $413,398.08
May-1998 $413,398.08 $0.00 $206,699.04 $0.00 $206,699.04
Jun-1998 $206,699.04 $0.00 $206,699.04 $0.00 $0.00
Jul-1998 $0.00 $620,097.12 $206,699.04 $685.64 $412,712.44
Aug-1998 $412,712.44 $0.00 $206,356.22 $0.00 $206,356.22
Sep-1998 $206,356.22 $0.00 $206,356.22 $0.00 $0.00
Oct-1998 $0.00 $619,068.67 $206,356.22 $697.69 $412,014.76
Nov-1998 $412,014.76 $0.00 $206,007.38 $0.00 $206,007.38
Dec-1998 $206,007.38 $0.00 $206,007.38 $0.00 $0.00
Jan-1999 $0.00 $618,022.15 $206,007.38 $709.95 $411,304.82
Feb-1999 $411,304.82 $0.00 $205,652.41 $0.00 $205,652.41
Mar-1999 $205,652.41 $0.00 $205,652.41 $0.00 $0.00
Apr-1999 $0.00 $616,957.23 $205,652.41 $722.42 $410,582.40
May-1999 $410,582.40 $0.00 $205,291.20 $0.00 $205,291.20
Jun-1999 $205,291.20 $0.00 $205,291.20 $0.00 $0.00
Jul-1999 $0.00 $615,873.60 $205,291.20 $735.12 $409,847.28
Aug-1999 $409,847.28 $0.00 $204,923.64 $0.00 $204,923.64
Sep-1999 $204,923.64 $0.00 $204,923.64 $0.00 $0.00
Oct-1999 $0.00 $614,770.92 $204,923.64 $748.04 $409,099.24
Nov-1999 $409,099.24 $0.00 $204,549.62 $0.00 $204,549.62
Dec-1999 $204,549.62 $0.00 $204,549.62 $0.00 $0.00
Jan-2000 $0.00 $613,648.86 $204,549.62 $761.18 $408,338.06
Feb-2000 $408,338.06 $0.00 $204,169.03 $0.00 $204,169.03
Mar-2000 $204,169.03 $0.00 $204,169.03 $0.00 $0.00
Apr-2000 $0.00 $612,507.08 $204,169.03 $774.55 $407,563.50
May-2000 $407,563.50 $0.00 $203,781.75 $0.00 $203,781.75
Jun-2000 $203,781.75 $0.00 $203,781.75 $0.00 $0.00
Jul-2000 $0.00 $611,345.24 $203,781.75 $788.17 $406,775.32
Aug-2000 $406,775.32 $0.00 $203,387.66 $0.00 $203,387.66
Sep-2000 $203,387.66 $0.00 $203,387.66 $0.00 $0.00
Oct-2000 $0.00 $610,162.98 $203,387.66 $802.04 $405,973.28
Nov-2000 $405,973.28 $0.00 $202,986.64 $0.00 $202,986.64
Dec-2000 $202,986.64 $0.00 $202,986.64 $0.00 $0.00
Jan-2001 $0.00 $608,959.93 $202,986.64 $816.13 $405,157.16
Feb-2001 $405,157.16 $0.00 $202,578.58 $0.00 $202,578.58
Mar-2001 $202,578.58 $0.00 $202,578.58 $0.00 $0.00
Apr-2001 $0.00 $607,735.75 $202,578.58 $830.47 $404,326.70
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-2
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #2
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #2 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
May-2001 $404,326.70 $0.00 $202,163.35 $0.00 $202,163.35
Jun-2001 $202,163.35 $0.00 $202,163.35 $0.00 $0.00
Jul-2001 $0.00 $606,490.05 $202,163.35 $845.06 $403,481.64
Aug-2001 $403,481.64 $0.00 $201,740.82 $0.00 $201,740.82
Sep-2001 $201,740.82 $0.00 $201,740.82 $0.00 $0.00
Oct-2001 $0.00 $605,222.46 $201,740.82 $859.92 $402,621.72
Nov-2001 $402,621.72 $0.00 $201,310.86 $0.00 $201,310.86
Dec-2001 $201,310.86 $0.00 $201,310.86 $0.00 $0.00
Jan-2002 $0.00 $603,932.58 $201,310.86 $2,378.26 $400,243.46
Feb-2002 $400,243.46 $0.00 $200,121.73 $0.00 $200,121.73
Mar-2002 $200,121.73 $0.00 $200,121.73 $0.00 $0.00
Apr-2002 $0.00 $600,365.18 $200,121.73 $2,420.05 $397,823.40
May-2002 $397,823.40 $0.00 $198,911.70 $0.00 $198,911.70
Jun-2002 $198,911.70 $0.00 $198,911.70 $0.00 $0.00
Jul-2002 $0.00 $596,735.09 $198,911.70 $2,462.59 $395,360.80
Aug-2002 $395,360.80 $0.00 $197,680.40 $0.00 $197,680.40
Sep-2002 $197,680.40 $0.00 $197,680.40 $0.00 $0.00
Oct-2002 $0.00 $593,041.19 $197,680.40 $2,505.87 $392,854.92
Nov-2002 $392,854.92 $0.00 $196,427.46 $0.00 $196,427.46
Dec-2002 $196,427.46 $0.00 $196,427.46 $0.00 $0.00
Jan-2003 $0.00 $589,282.38 $196,427.46 $2,549.92 $390,305.00
Feb-2003 $390,305.00 $0.00 $195,152.50 $0.00 $195,152.50
Mar-2003 $195,152.50 $0.00 $195,152.50 $0.00 $0.00
Apr-2003 $0.00 $585,457.50 $195,152.50 $2,594.74 $387,710.26
May-2003 $387,710.26 $0.00 $193,855.13 $0.00 $193,855.13
Jun-2003 $193,855.13 $0.00 $193,855.13 $0.00 $0.00
Jul-2003 $0.00 $581,565.40 $193,855.13 $2,640.33 $385,069.94
Aug-2003 $385,069.94 $0.00 $192,534.97 $0.00 $192,534.97
Sep-2003 $192,534.97 $0.00 $192,534.97 $0.00 $0.00
Oct-2003 $0.00 $577,604.90 $192,534.97 $2,686.73 $382,383.20
Nov-2003 $382,383.20 $0.00 $191,191.60 $0.00 $191,191.60
Dec-2003 $191,191.60 $0.00 $191,191.60 $0.00 $0.00
Jan-2004 $0.00 $573,574.79 $191,191.60 $2,733.95 $379,649.24
Feb-2004 $379,649.24 $0.00 $189,824.62 $0.00 $189,824.62
Mar-2004 $189,824.62 $0.00 $189,824.62 $0.00 $0.00
Apr-2004 $0.00 $569,473.86 $189,824.62 $2,782.02 $376,867.22
May-2004 $376,867.22 $0.00 $188,433.61 $0.00 $188,433.61
Jun-2004 $188,433.61 $0.00 $188,433.61 $0.00 $0.00
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-2
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #2
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #2 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jul-2004 $0.00 $565,300.84 $188,433.61 $2,830.91 $374,036.32
Aug-2004 $374,036.32 $0.00 $187,018.16 $0.00 $187,018.16
Sep-2004 $187,018.16 $0.00 $187,018.16 $0.00 $0.00
Oct-2004 $0.00 $561,054.49 $187,018.16 $2,880.65 $371,155.68
Nov-2004 $371,155.68 $0.00 $185,577.84 $0.00 $185,577.84
Dec-2004 $185,577.84 $0.00 $185,577.84 $0.00 $0.00
Jan-2005 $0.00 $556,733.51 $185,577.84 $2,931.29 $368,224.38
Feb-2005 $368,224.38 $0.00 $184,112.19 $0.00 $184,112.19
Mar-2005 $184,112.19 $0.00 $184,112.19 $0.00 $0.00
Apr-2005 $0.00 $552,336.59 $184,112.19 $2,982.80 $365,241.60
May-2005 $365,241.60 $0.00 $182,620.80 $0.00 $182,620.80
Jun-2005 $182,620.80 $0.00 $182,620.80 $0.00 $0.00
Jul-2005 $0.00 $547,862.39 $182,620.80 $3,035.23 $362,206.36
Aug-2005 $362,206.36 $0.00 $181,103.18 $0.00 $181,103.18
Sep-2005 $181,103.18 $0.00 $181,103.18 $0.00 $0.00
Oct-2005 $0.00 $543,309.56 $181,103.18 $3,088.58 $359,117.80
Nov-2005 $359,117.80 $0.00 $179,558.90 $0.00 $179,558.90
Dec-2005 $179,558.90 $0.00 $179,558.90 $0.00 $0.00
Jan-2006 $0.00 $538,676.71 $179,558.90 $3,142.85 $355,974.96
Feb-2006 $355,974.96 $0.00 $177,987.48 $0.00 $177,987.48
Mar-2006 $177,987.48 $0.00 $177,987.48 $0.00 $0.00
Apr-2006 $0.00 $533,962.44 $177,987.48 $3,198.08 $352,776.88
May-2006 $352,776.88 $0.00 $176,388.44 $0.00 $176,388.44
Jun-2006 $176,388.44 $0.00 $176,388.44 $0.00 $0.00
Jul-2006 $0.00 $529,165.31 $176,388.44 $3,254.29 $349,522.58
Aug-2006 $349,522.58 $0.00 $174,761.29 $0.00 $174,761.29
Sep-2006 $174,761.29 $0.00 $174,761.29 $0.00 $0.00
Oct-2006 $0.00 $524,283.88 $174,761.29 $3,311.49 $346,211.10
Nov-2006 $346,211.10 $0.00 $173,105.55 $0.00 $173,105.55
Dec-2006 $173,105.55 $0.00 $173,105.55 $0.00 $0.00
Jan-2007 $0.00 $519,316.65 $173,105.55 $5,158.54 $341,052.56
Feb-2007 $341,052.56 $0.00 $170,526.28 $0.00 $170,526.28
Mar-2007 $170,526.28 $0.00 $170,526.28 $0.00 $0.00
Apr-2007 $0.00 $511,578.85 $170,526.28 $5,249.21 $335,803.36
May-2007 $335,803.36 $0.00 $167,901.68 $0.00 $167,901.68
Jun-2007 $167,901.68 $0.00 $167,901.68 $0.00 $0.00
Jul-2007 $0.00 $503,705.05 $167,901.68 $5,341.45 $330,461.92
Aug-2007 $330,461.92 $0.00 $165,230.96 $0.00 $165,230.96
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-2
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #2
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #2 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Sep-2007 $165,230.96 $0.00 $165,230.96 $0.00 $0.00
Oct-2007 $0.00 $495,692.87 $165,230.96 $5,435.33 $325,026.58
Nov-2007 $325,026.58 $0.00 $162,513.29 $0.00 $162,513.29
Dec-2007 $162,513.29 $0.00 $162,513.29 $0.00 $0.00
Jan-2008 $0.00 $487,539.88 $162,513.29 $5,530.85 $319,495.74
Feb-2008 $319,495.74 $0.00 $159,747.87 $0.00 $159,747.87
Mar-2008 $159,747.87 $0.00 $159,747.87 $0.00 $0.00
Apr-2008 $0.00 $479,243.60 $159,747.87 $5,628.05 $313,867.68
May-2008 $313,867.68 $0.00 $156,933.84 $0.00 $156,933.84
Jun-2008 $156,933.84 $0.00 $156,933.84 $0.00 $0.00
Jul-2008 $0.00 $470,801.51 $156,933.84 $5,726.97 $308,140.70
Aug-2008 $308,140.70 $0.00 $154,070.35 $0.00 $154,070.35
Sep-2008 $154,070.35 $0.00 $154,070.35 $0.00 $0.00
Oct-2008 $0.00 $462,211.05 $154,070.35 $5,827.62 $302,313.08
Nov-2008 $302,313.08 $0.00 $151,156.54 $0.00 $151,156.54
Dec-2008 $151,156.54 $0.00 $151,156.54 $0.00 $0.00
Jan-2009 $0.00 $453,469.62 $151,156.54 $5,930.04 $296,383.04
Feb-2009 $296,383.04 $0.00 $148,191.52 $0.00 $148,191.52
Mar-2009 $148,191.52 $0.00 $148,191.52 $0.00 $0.00
Apr-2009 $0.00 $444,574.55 $148,191.52 $6,034.27 $290,348.76
May-2009 $290,348.76 $0.00 $145,174.38 $0.00 $145,174.38
Jun-2009 $145,174.38 $0.00 $145,174.38 $0.00 $0.00
Jul-2009 $0.00 $435,523.16 $145,174.38 $6,140.32 $284,208.46
Aug-2009 $284,208.46 $0.00 $142,104.23 $0.00 $142,104.23
Sep-2009 $142,104.23 $0.00 $142,104.23 $0.00 $0.00
Oct-2009 $0.00 $426,312.68 $142,104.23 $6,248.23 $277,960.22
Nov-2009 $277,960.22 $0.00 $138,980.11 $0.00 $138,980.11
Dec-2009 $138,980.11 $0.00 $138,980.11 $0.00 $0.00
Jan-2010 $0.00 $416,940.33 $138,980.11 $6,358.04 $271,602.18
Feb-2010 $271,602.18 $0.00 $135,801.09 $0.00 $135,801.09
Mar-2010 $135,801.09 $0.00 $135,801.09 $0.00 $0.00
Apr-2010 $0.00 $407,403.26 $135,801.09 $6,469.79 $265,132.38
May-2010 $265,132.38 $0.00 $132,566.19 $0.00 $132,566.19
Jun-2010 $132,566.19 $0.00 $132,566.19 $0.00 $0.00
Jul-2010 $0.00 $397,698.58 $132,566.19 $6,583.49 $258,548.90
Aug-2010 $258,548.90 $0.00 $129,274.45 $0.00 $129,274.45
Sep-2010 $129,274.45 $0.00 $129,274.45 $0.00 $0.00
Oct-2010 $0.00 $387,823.34 $129,274.45 $6,699.19 $251,849.70
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-2
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #2
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #2 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov-2010 $251,849.70 $0.00 $125,924.85 $0.00 $125,924.85
Dec-2010 $125,924.85 $0.00 $125,924.85 $0.00 $0.00
Jan-2011 $0.00 $377,774.54 $125,924.85 $6,816.93 $245,032.76
Feb-2011 $245,032.76 $0.00 $122,516.38 $0.00 $122,516.38
Mar-2011 $122,516.38 $0.00 $122,516.38 $0.00 $0.00
Apr-2011 $0.00 $367,549.13 $122,516.38 $6,936.75 $238,096.00
May-2011 $238,096.00 $0.00 $119,048.00 $0.00 $119,048.00
Jun-2011 $119,048.00 $0.00 $119,048.00 $0.00 $0.00
Jul-2011 $0.00 $357,144.02 $119,048.00 $7,058.68 $231,037.34
Aug-2011 $231,037.34 $0.00 $115,518.67 $0.00 $115,518.67
Sep-2011 $115,518.67 $0.00 $115,518.67 $0.00 $0.00
Oct-2011 $0.00 $346,556.03 $115,518.67 $7,182.72 $223,854.64
Nov-2011 $223,854.64 $0.00 $111,927.32 $0.00 $111,927.32
Dec-2011 $111,927.32 $0.00 $111,927.32 $0.00 $0.00
Jan-2012 $0.00 $335,781.95 $111,927.32 $9,437.69 $214,416.94
Feb-2012 $214,416.94 $0.00 $107,208.47 $0.00 $107,208.47
Mar-2012 $107,208.47 $0.00 $107,208.47 $0.00 $0.00
Apr-2012 $0.00 $321,625.42 $107,208.47 $9,603.57 $204,813.38
May-2012 $204,813.38 $0.00 $102,406.69 $0.00 $102,406.69
Jun-2012 $102,406.69 $0.00 $102,406.69 $0.00 $0.00
Jul-2012 $0.00 $307,220.09 $102,406.69 $9,772.36 $195,041.04
Aug-2012 $195,041.04 $0.00 $97,520.52 $0.00 $97,520.52
Sep-2012 $97,520.52 $0.00 $97,520.52 $0.00 $0.00
Oct-2012 $0.00 $292,561.58 $97,520.52 $9,944.10 $185,096.96
Nov-2012 $185,096.96 $0.00 $92,548.48 $0.00 $92,548.48
Dec-2012 $92,548.48 $0.00 $92,548.48 $0.00 $0.00
Jan-2013 $0.00 $277,645.45 $92,548.48 $10,118.87 $174,978.10
Feb-2013 $174,978.10 $0.00 $87,489.05 $0.00 $87,489.05
Mar-2013 $87,489.05 $0.00 $87,489.05 $0.00 $0.00
Apr-2013 $0.00 $262,467.17 $87,489.05 $10,296.70 $164,681.42
May-2013 $164,681.42 $0.00 $82,340.71 $0.00 $82,340.71
Jun-2013 $82,340.71 $0.00 $82,340.71 $0.00 $0.00
Jul-2013 $0.00 $247,022.12 $82,340.71 $10,477.65 $154,203.76
Aug-2013 $154,203.76 $0.00 $77,101.88 $0.00 $77,101.88
Sep-2013 $77,101.88 $0.00 $77,101.88 $0.00 $0.00
Oct-2013 $0.00 $231,305.64 $77,101.88 $10,661.80 $143,541.96
Nov-2013 $143,541.96 $0.00 $71,770.98 $0.00 $71,770.98
Dec-2013 $71,770.98 $0.00 $71,770.98 $0.00 $0.00
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-2
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #2
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #2 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jan-2014 $0.00 $215,312.93 $71,770.98 $10,849.19 $132,692.76
Feb-2014 $132,692.76 $0.00 $66,346.38 $0.00 $66,346.38
Mar-2014 $66,346.38 $0.00 $66,346.38 $0.00 $0.00
Apr-2014 $0.00 $199,039.16 $66,346.38 $11,039.88 $121,652.90
May-2014 $121,652.90 $0.00 $60,826.45 $0.00 $60,826.45
Jun-2014 $60,826.45 $0.00 $60,826.45 $0.00 $0.00
Jul-2014 $0.00 $182,479.37 $60,826.45 $11,233.90 $110,419.02
Aug-2014 $110,419.02 $0.00 $55,209.51 $0.00 $55,209.51
Sep-2014 $55,209.51 $0.00 $55,209.51 $0.00 ($0.00)
Oct-2014 ($0.00) $165,628.54 $55,209.51 $11,431.33 $98,987.70
Nov-2014 $98,987.70 $0.00 $49,493.85 $0.00 $49,493.85
Dec-2014 $49,493.85 $0.00 $49,493.85 $0.00 $0.00
Jan-2015 $0.00 $148,481.56 $49,493.85 $11,632.23 $87,355.48
Feb-2015 $87,355.48 $0.00 $43,677.74 $0.00 $43,677.74
Mar-2015 $43,677.74 $0.00 $43,677.74 $0.00 $0.00
Apr-2015 $0.00 $131,033.22 $43,677.74 $11,836.66 $75,518.82
May-2015 $75,518.82 $0.00 $37,759.41 $0.00 $37,759.41
Jun-2015 $37,759.41 $0.00 $37,759.41 $0.00 $0.00
Jul-2015 $0.00 $113,278.23 $37,759.41 $12,044.70 $63,474.12
Aug-2015 $63,474.12 $0.00 $31,737.06 $0.00 $31,737.06
Sep-2015 $31,737.06 $0.00 $31,737.06 $0.00 ($0.00)
Oct-2015 ($0.00) $95,211.20 $31,737.06 $12,256.38 $51,217.76
Nov-2015 $51,217.76 $0.00 $25,608.88 $0.00 $25,608.88
Dec-2015 $25,608.88 $0.00 $25,608.88 $0.00 $0.00
Jan-2016 $0.00 $76,826.63 $25,608.88 $12,471.79 $38,745.96
Feb-2016 $38,745.96 $0.00 $19,372.98 $0.00 $19,372.98
Mar-2016 $19,372.98 $0.00 $19,372.98 $0.00 $0.00
Apr-2016 $0.00 $58,118.96 $19,372.98 $12,690.98 $26,055.00
May-2016 $26,055.00 $0.00 $13,027.50 $0.00 $13,027.50
Jun-2016 $13,027.50 $0.00 $13,027.50 $0.00 $0.00
Jul-2016 $0.00 $39,082.50 $13,027.50 $12,914.02 $13,140.98
Aug-2016 $13,140.98 $0.00 $6,570.49 $0.00 $6,570.49
Sep-2016 $6,570.49 $0.00 $6,570.49 $0.00 ($0.00)
Oct-2016 ($0.00) $19,711.47 $6,570.49 $13,140.98 $0.00
--------------------------------------------------------------------
32,994,380.34 32,580,308.28 414,072.06
--------------------------------------------------------------------
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
$771,336.57 $771,336.57
Apr-1998 $771,336.57 $0.00 $385,668.26 $0.00 $385,668.31
May-1998 $385,668.31 $0.00 $385,668.26 $0.00 $0.05
Jun-1998 $0.05 $1,157,004.77 $385,668.26 $0.00 $771,336.56
Jul-1998 $771,336.56 $0.00 $385,668.26 $0.00 $385,668.30
Aug-1998 $385,668.30 $0.00 $385,668.26 $0.00 $0.04
Sep-1998 $0.04 $1,157,004.77 $385,668.26 $0.00 $771,336.55
Oct-1998 $771,336.55 $0.00 $385,668.26 $0.00 $385,668.29
Nov-1998 $385,668.29 $0.00 $385,668.26 $0.00 $0.03
Dec-1998 $0.03 $1,157,004.77 $385,668.26 $0.00 $771,336.54
Jan-1999 $771,336.54 $0.00 $385,668.26 $0.00 $385,668.28
Feb-1999 $385,668.28 $0.00 $385,668.26 $0.00 $0.02
Mar-1999 $0.02 $1,157,004.77 $385,668.26 $0.00 $771,336.53
Apr-1999 $771,336.53 $0.00 $385,668.26 $0.00 $385,668.27
May-1999 $385,668.27 $0.00 $385,668.26 $0.00 $0.01
Jun-1999 $0.01 $1,157,004.77 $385,668.26 $0.00 $771,336.52
Jul-1999 $771,336.52 $0.00 $385,668.26 $0.00 $385,668.26
Aug-1999 $385,668.26 $0.00 $385,668.26 $0.00 $0.00
Sep-1999 $0.00 $1,157,004.77 $385,668.26 $14,259.57 $757,076.94
Oct-1999 $757,076.94 $0.00 $378,538.47 $0.00 $378,538.47
Nov-1999 $378,538.47 $0.00 $378,538.47 $0.00 $0.00
Dec-1999 $0.00 $1,135,615.41 $378,538.47 $1,218.92 $755,858.02
Jan-2000 $755,858.02 $0.00 $377,929.01 $0.00 $377,929.01
Feb-2000 $377,929.01 $0.00 $377,929.01 $0.00 $0.00
Mar-2000 $0.00 $1,133,787.02 $377,929.01 $1,239.91 $754,618.10
Apr-2000 $754,618.10 $0.00 $377,309.05 $0.00 $377,309.05
May-2000 $377,309.05 $0.00 $377,309.05 $0.00 $0.00
Jun-2000 $0.00 $1,131,927.15 $377,309.05 $1,261.28 $753,356.82
Jul-2000 $753,356.82 $0.00 $376,678.41 $0.00 $376,678.41
Aug-2000 $376,678.41 $0.00 $376,678.41 $0.00 $0.00
Sep-2000 $0.00 $1,130,035.23 $376,678.41 $1,283.00 $752,073.82
Oct-2000 $752,073.82 $0.00 $376,036.91 $0.00 $376,036.91
Nov-2000 $376,036.91 $0.00 $376,036.91 $0.00 $0.00
Dec-2000 $0.00 $1,128,110.73 $376,036.91 $1,305.10 $750,768.72
Jan-2001 $750,768.72 $0.00 $375,384.36 $0.00 $375,384.36
Feb-2001 $375,384.36 $0.00 $375,384.36 $0.00 $0.00
Mar-2001 $0.00 $1,126,153.08 $375,384.36 $1,327.58 $749,441.14
Apr-2001 $749,441.14 $0.00 $374,720.57 $0.00 $374,720.57
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
May-2001 $374,720.57 $0.00 $374,720.57 $0.00 $0.00
Jun-2001 $0.00 $1,124,161.71 $374,720.57 $1,350.46 $748,090.68
Jul-2001 $748,090.68 $0.00 $374,045.34 $0.00 $374,045.34
Aug-2001 $374,045.34 $0.00 $374,045.34 $0.00 $0.00
Sep-2001 $0.00 $1,122,136.03 $374,045.34 $1,373.71 $746,716.98
Oct-2001 $746,716.98 $0.00 $373,358.49 $0.00 $373,358.49
Nov-2001 $373,358.49 $0.00 $373,358.49 $0.00 $0.00
Dec-2001 $0.00 $1,120,075.47 $373,358.49 $1,397.38 $745,319.60
Jan-2002 $745,319.60 $0.00 $372,659.80 $0.00 $372,659.80
Feb-2002 $372,659.80 $0.00 $372,659.80 $0.00 $0.00
Mar-2002 $0.00 $1,117,979.41 $372,659.80 $1,421.45 $743,898.16
Apr-2002 $743,898.16 $0.00 $371,949.08 $0.00 $371,949.08
May-2002 $371,949.08 $0.00 $371,949.08 $0.00 $0.00
Jun-2002 $0.00 $1,115,847.24 $371,949.08 $1,445.92 $742,452.24
Jul-2002 $742,452.24 $0.00 $371,226.12 $0.00 $371,226.12
Aug-2002 $371,226.12 $0.00 $371,226.12 $0.00 $0.00
Sep-2002 $0.00 $1,113,678.35 $371,226.12 $1,470.83 $740,981.40
Oct-2002 $740,981.40 $0.00 $370,490.70 $0.00 $370,490.70
Nov-2002 $370,490.70 $0.00 $370,490.70 $0.00 $0.00
Dec-2002 $0.00 $1,111,472.10 $370,490.70 $1,496.16 $739,485.24
Jan-2003 $739,485.24 $0.00 $369,742.62 $0.00 $369,742.62
Feb-2003 $369,742.62 $0.00 $369,742.62 $0.00 $0.00
Mar-2003 $0.00 $1,109,227.85 $369,742.62 $1,521.93 $737,963.30
Apr-2003 $737,963.30 $0.00 $368,981.65 $0.00 $368,981.65
May-2003 $368,981.65 $0.00 $368,981.65 $0.00 $0.00
Jun-2003 $0.00 $1,106,944.94 $368,981.65 $1,548.15 $736,415.14
Jul-2003 $736,415.14 $0.00 $368,207.57 $0.00 $368,207.57
Aug-2003 $368,207.57 $0.00 $368,207.57 $0.00 $0.00
Sep-2003 $0.00 $1,104,622.71 $368,207.57 $1,574.82 $734,840.32
Oct-2003 $734,840.32 $0.00 $367,420.16 $0.00 $367,420.16
Nov-2003 $367,420.16 $0.00 $367,420.16 $0.00 $0.00
Dec-2003 $0.00 $1,102,260.48 $367,420.16 $1,601.94 $733,238.38
Jan-2004 $733,238.38 $0.00 $366,619.19 $0.00 $366,619.19
Feb-2004 $366,619.19 $0.00 $366,619.19 $0.00 $0.00
Mar-2004 $0.00 $1,099,857.56 $366,619.19 $1,629.55 $731,608.82
Apr-2004 $731,608.82 $0.00 $365,804.41 $0.00 $365,804.41
May-2004 $365,804.41 $0.00 $365,804.41 $0.00 $0.00
Jun-2004 $0.00 $1,097,413.24 $365,804.41 $1,657.61 $729,951.22
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jul-2004 $729,951.22 $0.00 $364,975.61 $0.00 $364,975.61
Aug-2004 $364,975.61 $0.00 $364,975.61 $0.00 $0.00
Sep-2004 $0.00 $1,094,926.83 $364,975.61 $4,395.48 $725,555.74
Oct-2004 $725,555.74 $0.00 $362,777.87 $0.00 $362,777.87
Nov-2004 $362,777.87 $0.00 $362,777.87 $0.00 $0.00
Dec-2004 $0.00 $1,088,333.60 $362,777.87 $4,471.19 $721,084.54
Jan-2005 $721,084.54 $0.00 $360,542.27 $0.00 $360,542.27
Feb-2005 $360,542.27 $0.00 $360,542.27 $0.00 $0.00
Mar-2005 $0.00 $1,081,626.81 $360,542.27 $4,548.20 $716,536.34
Apr-2005 $716,536.34 $0.00 $358,268.17 $0.00 $358,268.17
May-2005 $358,268.17 $0.00 $358,268.17 $0.00 $0.00
Jun-2005 $0.00 $1,074,804.50 $358,268.17 $4,626.55 $711,909.78
Jul-2005 $711,909.78 $0.00 $355,954.89 $0.00 $355,954.89
Aug-2005 $355,954.89 $0.00 $355,954.89 $0.00 $0.00
Sep-2005 $0.00 $1,067,864.67 $355,954.89 $4,706.24 $707,203.54
Oct-2005 $707,203.54 $0.00 $353,601.77 $0.00 $353,601.77
Nov-2005 $353,601.77 $0.00 $353,601.77 $0.00 $0.00
Dec-2005 $0.00 $1,060,805.30 $353,601.77 $4,787.31 $702,416.22
Jan-2006 $702,416.22 $0.00 $351,208.11 $0.00 $351,208.11
Feb-2006 $351,208.11 $0.00 $351,208.11 $0.00 $0.00
Mar-2006 $0.00 $1,053,624.33 $351,208.11 $4,869.78 $697,546.44
Apr-2006 $697,546.44 $0.00 $348,773.22 $0.00 $348,773.22
May-2006 $348,773.22 $0.00 $348,773.22 $0.00 $0.00
Jun-2006 $0.00 $1,046,319.68 $348,773.22 $4,953.66 $692,592.80
Jul-2006 $692,592.80 $0.00 $346,296.40 $0.00 $346,296.40
Aug-2006 $346,296.40 $0.00 $346,296.40 $0.00 $0.00
Sep-2006 $0.00 $1,038,889.19 $346,296.40 $5,038.97 $687,553.82
Oct-2006 $687,553.82 $0.00 $343,776.91 $0.00 $343,776.91
Nov-2006 $343,776.91 $0.00 $343,776.91 $0.00 $0.00
Dec-2006 $0.00 $1,031,330.72 $343,776.91 $5,125.77 $682,428.04
Jan-2007 $682,428.04 $0.00 $341,214.02 $0.00 $341,214.02
Feb-2007 $341,214.02 $0.00 $341,214.02 $0.00 $0.00
Mar-2007 $0.00 $1,023,642.06 $341,214.02 $5,214.08 $677,213.96
Apr-2007 $677,213.96 $0.00 $338,606.98 $0.00 $338,606.98
May-2007 $338,606.98 $0.00 $338,606.98 $0.00 $0.00
Jun-2007 $0.00 $1,015,820.96 $338,606.98 $5,303.90 $671,910.08
Jul-2007 $671,910.08 $0.00 $335,955.04 $0.00 $335,955.04
Aug-2007 $335,955.04 $0.00 $335,955.04 $0.00 $0.00
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Sep-2007 $0.00 $1,007,865.13 $335,955.04 $5,395.25 $666,514.84
Oct-2007 $666,514.84 $0.00 $333,257.42 $0.00 $333,257.42
Nov-2007 $333,257.42 $0.00 $333,257.42 $0.00 $0.00
Dec-2007 $0.00 $999,772.27 $333,257.42 $5,488.17 $661,026.68
Jan-2008 $661,026.68 $0.00 $330,513.34 $0.00 $330,513.34
Feb-2008 $330,513.34 $0.00 $330,513.34 $0.00 $0.00
Mar-2008 $0.00 $991,540.01 $330,513.34 $5,582.71 $655,443.96
Apr-2008 $655,443.96 $0.00 $327,721.98 $0.00 $327,721.98
May-2008 $327,721.98 $0.00 $327,721.98 $0.00 $0.00
Jun-2008 $0.00 $983,165.95 $327,721.98 $5,678.87 $649,765.10
Jul-2008 $649,765.10 $0.00 $324,882.55 $0.00 $324,882.55
Aug-2008 $324,882.55 $0.00 $324,882.55 $0.00 $0.00
Sep-2008 $0.00 $974,647.65 $324,882.55 $5,776.68 $643,988.42
Oct-2008 $643,988.42 $0.00 $321,994.21 $0.00 $321,994.21
Nov-2008 $321,994.21 $0.00 $321,994.21 $0.00 $0.00
Dec-2008 $0.00 $965,982.62 $321,994.21 $5,876.19 $638,112.22
Jan-2009 $638,112.22 $0.00 $319,056.11 $0.00 $319,056.11
Feb-2009 $319,056.11 $0.00 $319,056.11 $0.00 $0.00
Mar-2009 $0.00 $957,168.33 $319,056.11 $5,977.40 $632,134.82
Apr-2009 $632,134.82 $0.00 $316,067.41 $0.00 $316,067.41
May-2009 $316,067.41 $0.00 $316,067.41 $0.00 $0.00
Jun-2009 $0.00 $948,202.22 $316,067.41 $6,080.37 $626,054.44
Jul-2009 $626,054.44 $0.00 $313,027.22 $0.00 $313,027.22
Aug-2009 $313,027.22 $0.00 $313,027.22 $0.00 $0.00
Sep-2009 $0.00 $939,081.66 $313,027.22 $9,409.20 $616,645.24
Oct-2009 $616,645.24 $0.00 $308,322.62 $0.00 $308,322.62
Nov-2009 $308,322.62 $0.00 $308,322.62 $0.00 $0.00
Dec-2009 $0.00 $924,967.88 $308,322.62 $9,571.28 $607,073.98
Jan-2010 $607,073.98 $0.00 $303,536.99 $0.00 $303,536.99
Feb-2010 $303,536.99 $0.00 $303,536.99 $0.00 $0.00
Mar-2010 $0.00 $910,610.98 $303,536.99 $9,736.13 $597,337.86
Apr-2010 $597,337.86 $0.00 $298,668.93 $0.00 $298,668.93
May-2010 $298,668.93 $0.00 $298,668.93 $0.00 $0.00
Jun-2010 $0.00 $896,006.78 $298,668.93 $9,903.83 $587,434.02
Jul-2010 $587,434.02 $0.00 $293,717.01 $0.00 $293,717.01
Aug-2010 $293,717.01 $0.00 $293,717.01 $0.00 $0.00
Sep-2010 $0.00 $881,151.02 $293,717.01 $10,074.43 $577,359.58
Oct-2010 $577,359.58 $0.00 $288,679.79 $0.00 $288,679.79
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov-2010 $288,679.79 $0.00 $288,679.79 $0.00 $0.00
Dec-2010 $0.00 $866,039.38 $288,679.79 $10,247.97 $567,111.62
Jan-2011 $567,111.62 $0.00 $283,555.81 $0.00 $283,555.81
Feb-2011 $283,555.81 $0.00 $283,555.81 $0.00 $0.00
Mar-2011 $0.00 $850,667.44 $283,555.81 $10,424.49 $556,687.14
Apr-2011 $556,687.14 $0.00 $278,343.57 $0.00 $278,343.57
May-2011 $278,343.57 $0.00 $278,343.57 $0.00 $0.00
Jun-2011 $0.00 $835,030.71 $278,343.57 $10,604.04 $546,083.10
Jul-2011 $546,083.10 $0.00 $273,041.55 $0.00 $273,041.55
Aug-2011 $273,041.55 $0.00 $273,041.55 $0.00 $0.00
Sep-2011 $0.00 $819,124.64 $273,041.55 $10,786.69 $535,296.40
Oct-2011 $535,296.40 $0.00 $267,648.20 $0.00 $267,648.20
Nov-2011 $267,648.20 $0.00 $267,648.20 $0.00 $0.00
Dec-2011 $0.00 $802,944.59 $267,648.20 $10,972.49 $524,323.90
Jan-2012 $524,323.90 $0.00 $262,161.95 $0.00 $262,161.95
Feb-2012 $262,161.95 $0.00 $262,161.95 $0.00 $0.00
Mar-2012 $0.00 $786,485.84 $262,161.95 $11,161.49 $513,162.40
Apr-2012 $513,162.40 $0.00 $256,581.20 $0.00 $256,581.20
May-2012 $256,581.20 $0.00 $256,581.20 $0.00 $0.00
Jun-2012 $0.00 $769,743.59 $256,581.20 $11,353.75 $501,808.64
Jul-2012 $501,808.64 $0.00 $250,904.32 $0.00 $250,904.32
Aug-2012 $250,904.32 $0.00 $250,904.32 $0.00 $0.00
Sep-2012 $0.00 $752,712.95 $250,904.32 $11,549.33 $490,259.30
Oct-2012 $490,259.30 $0.00 $245,129.65 $0.00 $245,129.65
Nov-2012 $245,129.65 $0.00 $245,129.65 $0.00 $0.00
Dec-2012 $0.00 $735,388.96 $245,129.65 $11,748.27 $478,511.04
Jan-2013 $478,511.04 $0.00 $239,255.52 $0.00 $239,255.52
Feb-2013 $239,255.52 $0.00 $239,255.52 $0.00 $0.00
Mar-2013 $0.00 $717,766.57 $239,255.52 $11,950.63 $466,560.42
Apr-2013 $466,560.42 $0.00 $233,280.21 $0.00 $233,280.21
May-2013 $233,280.21 $0.00 $233,280.21 $0.00 $0.00
Jun-2013 $0.00 $699,840.62 $233,280.21 $12,156.47 $454,403.94
Jul-2013 $454,403.94 $0.00 $227,201.97 $0.00 $227,201.97
Aug-2013 $227,201.97 $0.00 $227,201.97 $0.00 $0.00
Sep-2013 $0.00 $681,605.91 $227,201.97 $12,365.88 $442,038.06
Oct-2013 $442,038.06 $0.00 $221,019.03 $0.00 $221,019.03
Nov-2013 $221,019.03 $0.00 $221,019.03 $0.00 $0.00
Dec-2013 $0.00 $663,057.10 $221,019.03 $12,578.89 $429,459.18
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jan-2014 $429,459.18 $0.00 $214,729.59 $0.00 $214,729.59
Feb-2014 $214,729.59 $0.00 $214,729.59 $0.00 $0.00
Mar-2014 $0.00 $644,188.78 $214,729.59 $12,795.55 $416,663.64
Apr-2014 $416,663.64 $0.00 $208,331.82 $0.00 $208,331.82
May-2014 $208,331.82 $0.00 $208,331.82 $0.00 $0.00
Jun-2014 $0.00 $624,995.46 $208,331.82 $13,015.96 $403,647.68
Jul-2014 $403,647.68 $0.00 $201,823.84 $0.00 $201,823.84
Aug-2014 $201,823.84 $0.00 $201,823.84 $0.00 $0.00
Sep-2014 $0.00 $605,471.54 $201,823.84 $17,076.82 $386,570.88
Oct-2014 $386,570.88 $0.00 $193,285.44 $0.00 $193,285.44
Nov-2014 $193,285.44 $0.00 $193,285.44 $0.00 $0.00
Dec-2014 $0.00 $579,856.32 $193,285.44 $17,370.96 $369,199.92
Jan-2015 $369,199.92 $0.00 $184,599.96 $0.00 $184,599.96
Feb-2015 $184,599.96 $0.00 $184,599.96 $0.00 $0.00
Mar-2015 $0.00 $553,799.87 $184,599.96 $17,670.17 $351,529.74
Apr-2015 $351,529.74 $0.00 $175,764.87 $0.00 $175,764.87
May-2015 $175,764.87 $0.00 $175,764.87 $0.00 $0.00
Jun-2015 $0.00 $527,294.60 $175,764.87 $17,974.55 $333,555.18
Jul-2015 $333,555.18 $0.00 $166,777.59 $0.00 $166,777.59
Aug-2015 $166,777.59 $0.00 $166,777.59 $0.00 $0.00
Sep-2015 $0.00 $500,332.78 $166,777.59 $18,284.17 $315,271.02
Oct-2015 $315,271.02 $0.00 $157,635.51 $0.00 $157,635.51
Nov-2015 $157,635.51 $0.00 $157,635.51 $0.00 $0.00
Dec-2015 $0.00 $472,906.54 $157,635.51 $18,599.11 $296,671.92
Jan-2016 $296,671.92 $0.00 $148,335.96 $0.00 $148,335.96
Feb-2016 $148,335.96 $0.00 $148,335.96 $0.00 $0.00
Mar-2016 $0.00 $445,007.89 $148,335.96 $18,919.49 $277,752.44
Apr-2016 $277,752.44 $0.00 $138,876.22 $0.00 $138,876.22
May-2016 $138,876.22 $0.00 $138,876.22 $0.00 $0.00
Jun-2016 $0.00 $416,628.68 $138,876.22 $19,245.38 $258,507.08
Jul-2016 $258,507.08 $0.00 $129,253.54 $0.00 $129,253.54
Aug-2016 $129,253.54 $0.00 $129,253.54 $0.00 $0.00
Sep-2016 $0.00 $387,760.63 $129,253.54 $19,576.87 $238,930.22
Oct-2016 $238,930.22 $0.00 $119,465.11 $0.00 $119,465.11
Nov-2016 $119,465.11 $0.00 $119,465.11 $0.00 $0.00
Dec-2016 $0.00 $358,395.34 $119,465.11 $19,914.09 $219,016.14
Jan-2017 $219,016.14 $0.00 $109,508.07 $0.00 $109,508.07
Feb-2017 $109,508.07 $0.00 $109,508.07 $0.00 $0.00
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X-3
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOAN #3 SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ------------ -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Mar-2017 $0.00 $328,524.23 $109,508.07 $20,257.10 $198,759.06
Apr-2017 $198,759.06 $0.00 $99,379.53 $0.00 $99,379.53
May-2017 $99,379.53 $0.00 $99,379.53 $0.00 $0.00
Jun-2017 $0.00 $298,138.59 $99,379.53 $20,606.02 $178,153.04
Jul-2017 $178,153.04 $0.00 $89,076.52 $0.00 $89,076.52
Aug-2017 $89,076.52 $0.00 $89,076.52 $0.00 $0.00
Sep-2017 $0.00 $267,229.55 $89,076.52 $20,960.95 $157,192.08
Oct-2017 $157,192.08 $0.00 $78,596.04 $0.00 $78,596.04
Nov-2017 $78,596.04 $0.00 $78,596.04 $0.00 $0.00
Dec-2017 $0.00 $235,788.11 $78,596.04 $21,322.01 $135,870.06
Jan-2018 $135,870.06 $0.00 $67,935.03 $0.00 $67,935.03
Feb-2018 $67,935.03 $0.00 $67,935.03 $0.00 $0.00
Mar-2018 $0.00 $203,805.09 $67,935.03 $21,689.28 $114,180.78
Apr-2018 $114,180.78 $0.00 $57,090.39 $0.00 $57,090.39
May-2018 $57,090.39 $0.00 $57,090.39 $0.00 $0.00
Jun-2018 $0.00 $171,271.16 $57,090.39 $22,062.89 $92,117.88
Jul-2018 $92,117.88 $0.00 $46,058.94 $0.00 $46,058.94
Aug-2018 $46,058.94 $0.00 $46,058.94 $0.00 $0.00
Sep-2018 $0.00 $138,176.84 $46,058.94 $22,442.92 $69,674.98
Oct-2018 $69,674.98 $0.00 $34,837.49 $0.00 $34,837.49
Nov-2018 $34,837.49 $0.00 $34,837.49 $0.00 $0.00
Dec-2018 $0.00 $104,512.46 $34,837.49 $22,829.49 $46,845.48
Jan-2019 $46,845.48 $0.00 $23,422.74 $0.00 $23,422.74
Feb-2019 $23,422.74 $0.00 $23,422.74 $0.00 $0.00
Mar-2019 $0.00 $70,268.22 $23,422.74 $23,222.74 $23,622.74
Apr-2019 $23,622.74 $0.00 $11,811.37 $0.00 $11,811.37
May-2019 $11,811.37 $0.00 $11,811.37 $0.00 $0.00
Jun-2019 $0.00 $35,434.12 $11,811.37 $23,622.75 $0.00
--------------------------------------------------------------
71,181,680.58 71,181,680.58 771,336.57
--------------------------------------------------------------
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
$771,336.57 $771,336.57
Apr-1998 $771,336.57 $822,256.15 $653,048.70 $20,788.63 $919,755.39
May-1998 $919,755.39 $0.00 $652,711.80 $0.00 $267,043.59
Jun-1998 $267,043.59 $1,157,004.77 $652,711.80 $0.00 $771,336.56
Jul-1998 $771,336.56 $801,130.63 $652,711.80 $784.89 $918,970.50
Aug-1998 $918,970.50 $0.00 $652,319.36 $0.00 $266,651.14
Sep-1998 $266,651.14 $1,157,004.77 $652,319.36 $0.00 $771,336.55
Oct-1998 $771,336.55 $799,953.31 $652,319.36 $798.89 $918,171.61
Nov-1998 $918,171.61 $0.00 $651,919.92 $0.01 $266,251.69
Dec-1998 $266,251.69 $1,157,004.77 $651,919.92 $0.00 $771,336.54
Jan-1999 $771,336.54 $798,754.99 $651,919.92 $813.13 $917,358.48
Feb-1999 $917,358.48 $0.00 $651,513.36 $0.01 $265,845.12
Mar-1999 $265,845.12 $1,157,004.77 $651,513.36 $0.00 $771,336.53
Apr-1999 $771,336.53 $797,535.29 $651,513.36 $827.65 $916,530.81
May-1999 $916,530.81 $0.00 $651,099.53 $0.01 $265,431.28
Jun-1999 $265,431.28 $1,157,004.77 $651,099.53 $0.00 $771,336.52
Jul-1999 $771,336.52 $796,293.82 $651,099.53 $842.41 $915,688.40
Aug-1999 $915,688.40 $0.00 $650,678.33 $0.01 $265,010.07
Sep-1999 $265,010.07 $1,157,004.77 $650,678.33 $14,259.57 $757,076.94
Oct-1999 $757,076.94 $795,030.21 $643,548.54 $857.44 $907,701.17
Nov-1999 $907,701.17 $0.00 $643,119.82 $0.00 $264,581.35
Dec-1999 $264,581.35 $1,135,615.41 $643,119.82 $1,218.92 $755,858.02
Jan-2000 $755,858.02 $793,744.05 $642,510.36 $872.74 $906,218.97
Feb-2000 $906,218.97 $0.00 $642,073.99 $0.00 $264,144.98
Mar-2000 $264,144.98 $1,133,787.02 $642,073.99 $1,239.91 $754,618.10
Apr-2000 $754,618.10 $792,434.94 $641,454.03 $888.30 $904,710.71
May-2000 $904,710.71 $0.00 $641,009.88 $0.00 $263,700.83
Jun-2000 $263,700.83 $1,131,927.15 $641,009.88 $1,261.28 $753,356.82
Jul-2000 $753,356.82 $791,102.47 $640,379.24 $904.16 $903,175.89
Aug-2000 $903,175.89 $0.00 $639,927.15 $0.00 $263,248.74
Sep-2000 $263,248.74 $1,130,035.23 $639,927.15 $1,283.00 $752,073.82
Oct-2000 $752,073.82 $789,746.22 $639,285.65 $920.30 $901,614.09
Nov-2000 $901,614.09 $0.00 $638,825.50 $0.00 $262,788.59
Dec-2000 $262,788.59 $1,128,110.73 $638,825.50 $1,305.10 $750,768.72
Jan-2001 $750,768.72 $788,365.78 $638,172.95 $936.73 $900,024.82
Feb-2001 $900,024.82 $0.00 $637,704.59 $0.00 $262,320.23
Mar-2001 $262,320.23 $1,126,153.08 $637,704.59 $1,327.58 $749,441.14
Apr-2001 $749,441.14 $786,960.70 $637,040.80 $953.45 $898,407.59
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
May-2001 $898,407.59 $0.00 $636,564.08 $0.00 $261,843.51
Jun-2001 $261,843.51 $1,124,161.71 $636,564.08 $1,350.46 $748,090.68
Jul-2001 $748,090.68 $785,530.54 $635,888.85 $970.45 $896,761.92
Aug-2001 $896,761.92 $0.00 $635,403.63 $0.00 $261,358.29
Sep-2001 $261,358.29 $1,122,136.03 $635,403.63 $1,373.71 $746,716.98
Oct-2001 $746,716.98 $784,074.86 $634,716.78 $987.77 $895,087.29
Nov-2001 $895,087.29 $0.00 $634,222.89 $0.00 $260,864.40
Dec-2001 $260,864.40 $1,120,075.47 $634,222.89 $1,397.38 $745,319.60
Jan-2002 $745,319.60 $782,593.21 $633,524.20 $2,508.63 $891,879.98
Feb-2002 $891,879.98 $0.00 $632,269.89 $0.00 $259,610.09
Mar-2002 $259,610.09 $1,117,979.41 $632,269.89 $1,421.45 $743,898.16
Apr-2002 $743,898.16 $778,830.25 $631,559.17 $2,552.98 $888,616.26
May-2002 $888,616.26 $0.00 $630,282.67 $0.00 $258,333.59
Jun-2002 $258,333.59 $1,115,847.24 $630,282.67 $1,445.92 $742,452.24
Jul-2002 $742,452.24 $775,000.75 $629,559.71 $2,598.14 $885,295.14
Aug-2002 $885,295.14 $0.00 $628,260.63 $0.00 $257,034.51
Sep-2002 $257,034.51 $1,113,678.35 $628,260.63 $1,470.83 $740,981.40
Oct-2002 $740,981.40 $771,103.53 $627,525.21 $2,644.10 $881,915.62
Nov-2002 $881,915.62 $0.00 $626,203.16 $0.00 $255,712.46
Dec-2002 $255,712.46 $1,111,472.10 $626,203.16 $1,496.16 $739,485.24
Jan-2003 $739,485.24 $767,137.38 $625,455.08 $3,160.88 $878,006.66
Feb-2003 $878,006.66 $0.00 $623,874.64 $0.00 $254,132.02
Mar-2003 $254,132.02 $1,109,227.85 $623,874.64 $1,521.93 $737,963.30
Apr-2003 $737,963.30 $762,396.07 $623,113.67 $3,217.73 $874,027.97
May-2003 $874,027.97 $0.00 $621,504.81 $0.00 $252,523.16
Jun-2003 $252,523.16 $1,106,944.94 $621,504.81 $1,548.15 $736,415.14
Jul-2003 $736,415.14 $757,569.49 $620,730.73 $3,275.57 $869,978.33
Aug-2003 $869,978.33 $0.00 $619,092.95 $0.00 $250,885.38
Sep-2003 $250,885.38 $1,104,622.71 $619,092.95 $1,574.82 $734,840.32
Oct-2003 $734,840.32 $752,656.13 $618,305.54 $3,334.47 $865,856.44
Nov-2003 $865,856.44 $0.00 $616,638.30 $0.00 $249,218.14
Dec-2003 $249,218.14 $1,102,260.48 $616,638.30 $1,601.94 $733,238.38
Jan-2004 $733,238.38 $747,654.42 $615,837.33 $3,394.44 $861,661.03
Feb-2004 $861,661.03 $0.00 $614,140.11 $0.00 $247,520.92
Mar-2004 $247,520.92 $1,099,857.56 $614,140.11 $1,629.55 $731,608.82
Apr-2004 $731,608.82 $742,562.76 $613,325.33 $3,455.50 $857,390.75
May-2004 $857,390.75 $0.00 $611,597.58 $0.00 $245,793.17
Jun-2004 $245,793.17 $1,097,413.24 $611,597.58 $1,657.61 $729,951.22
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jul-2004 $729,951.22 $737,379.53 $610,768.78 $3,517.64 $853,044.33
Aug-2004 $853,044.33 $0.00 $609,009.97 $0.00 $244,034.36
Sep-2004 $244,034.36 $1,094,926.83 $609,009.97 $4,395.48 $725,555.74
Oct-2004 $725,555.74 $732,103.09 $606,812.23 $3,580.89 $847,265.71
Nov-2004 $847,265.71 $0.00 $605,021.79 $0.00 $242,243.92
Dec-2004 $242,243.92 $1,088,333.60 $605,021.79 $4,471.19 $721,084.54
Jan-2005 $721,084.54 $726,731.75 $602,786.19 $3,645.31 $841,384.79
Feb-2005 $841,384.79 $0.00 $600,963.53 $0.00 $240,421.26
Mar-2005 $240,421.26 $1,081,626.81 $600,963.53 $4,548.20 $716,536.34
Apr-2005 $716,536.34 $721,263.81 $598,689.43 $3,710.87 $835,399.85
May-2005 $835,399.85 $0.00 $596,834.01 $0.00 $238,565.84
Jun-2005 $238,565.84 $1,074,804.50 $596,834.01 $4,626.55 $711,909.78
Jul-2005 $711,909.78 $715,697.51 $594,520.73 $3,777.61 $829,308.95
Aug-2005 $829,308.95 $0.00 $592,631.92 $0.00 $236,677.03
Sep-2005 $236,677.03 $1,067,864.67 $592,631.92 $4,706.24 $707,203.54
Oct-2005 $707,203.54 $710,031.10 $590,278.80 $3,845.57 $823,110.27
Nov-2005 $823,110.27 $0.00 $588,356.02 $0.00 $234,754.25
Dec-2005 $234,754.25 $1,060,805.30 $588,356.02 $4,787.31 $702,416.22
Jan-2006 $702,416.22 $704,262.75 $585,962.36 $3,914.74 $816,801.87
Feb-2006 $816,801.87 $0.00 $584,004.99 $0.00 $232,796.88
Mar-2006 $232,796.88 $1,053,624.33 $584,004.99 $4,869.78 $697,546.44
Apr-2006 $697,546.44 $698,390.65 $581,570.10 $3,985.15 $810,381.84
May-2006 $810,381.84 $0.00 $579,577.53 $0.00 $230,804.31
Jun-2006 $230,804.31 $1,046,319.68 $579,577.53 $4,953.66 $692,592.80
Jul-2006 $692,592.80 $692,412.91 $577,100.71 $4,056.84 $803,848.16
Aug-2006 $803,848.16 $0.00 $575,072.28 $0.00 $228,775.88
Sep-2006 $228,775.88 $1,038,889.19 $575,072.28 $5,038.97 $687,553.82
Oct-2006 $687,553.82 $686,327.63 $572,552.79 $4,129.83 $797,198.83
Nov-2006 $797,198.83 $0.00 $570,487.87 $0.00 $226,710.96
Dec-2006 $226,710.96 $1,031,330.72 $570,487.87 $5,125.77 $682,428.04
Jan-2007 $682,428.04 $680,132.88 $567,924.98 $5,993.00 $788,642.94
Feb-2007 $788,642.94 $0.00 $564,928.48 $0.00 $223,714.46
Mar-2007 $223,714.46 $1,023,642.06 $564,928.48 $5,214.08 $677,213.96
Apr-2007 $677,213.96 $671,143.40 $562,321.44 $6,100.08 $779,935.84
May-2007 $779,935.84 $0.00 $559,271.41 $0.00 $220,664.43
Jun-2007 $220,664.43 $1,015,820.96 $559,271.41 $5,303.90 $671,910.08
Jul-2007 $671,910.08 $661,993.29 $556,619.47 $6,209.06 $771,074.84
Aug-2007 $771,074.84 $0.00 $553,514.94 $0.00 $217,559.90
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Sep-2007 $217,559.90 $1,007,865.13 $553,514.94 $5,395.25 $666,514.84
Oct-2007 $666,514.84 $652,679.70 $550,817.32 $6,320.02 $762,057.20
Nov-2007 $762,057.20 $0.00 $547,657.31 $0.00 $214,399.89
Dec-2007 $214,399.89 $999,772.27 $547,657.31 $5,488.17 $661,026.68
Jan-2008 $661,026.68 $643,199.68 $544,913.23 $6,992.27 $752,320.86
Feb-2008 $752,320.86 $0.00 $541,417.10 $0.00 $210,903.76
Mar-2008 $210,903.76 $991,540.01 $541,417.10 $5,582.71 $655,443.96
Apr-2008 $655,443.96 $632,711.28 $538,625.74 $7,118.22 $742,411.28
May-2008 $742,411.28 $0.00 $535,066.63 $0.00 $207,344.65
Jun-2008 $207,344.65 $983,165.95 $535,066.63 $5,678.87 $649,765.10
Jul-2008 $649,765.10 $622,033.94 $532,227.20 $7,246.47 $732,325.37
Aug-2008 $732,325.37 $0.00 $528,603.96 $0.00 $203,721.41
Sep-2008 $203,721.41 $974,647.65 $528,603.96 $5,776.68 $643,988.42
Oct-2008 $643,988.42 $611,164.25 $525,715.62 $7,377.02 $722,060.03
Nov-2008 $722,060.03 $0.00 $522,027.12 $0.00 $200,032.91
Dec-2008 $200,032.91 $965,982.62 $522,027.12 $5,876.19 $638,112.22
Jan-2009 $638,112.22 $600,098.74 $519,089.02 $7,509.91 $711,612.03
Feb-2009 $711,612.03 $0.00 $515,334.07 $0.00 $196,277.96
Mar-2009 $196,277.96 $957,168.33 $515,334.07 $5,977.40 $632,134.82
Apr-2009 $632,134.82 $588,833.87 $512,345.37 $7,645.23 $700,978.09
May-2009 $700,978.09 $0.00 $508,522.75 $0.00 $192,455.34
Jun-2009 $192,455.34 $948,202.22 $508,522.75 $6,080.37 $626,054.44
Jul-2009 $626,054.44 $577,366.05 $505,482.56 $7,782.97 $690,154.96
Aug-2009 $690,154.96 $0.00 $501,591.09 $0.00 $188,563.87
Sep-2009 $188,563.87 $939,081.66 $501,591.09 $9,409.20 $616,645.24
Oct-2009 $616,645.24 $565,691.60 $496,886.49 $7,923.19 $677,527.16
Nov-2009 $677,527.16 $0.00 $492,924.89 $0.00 $184,602.27
Dec-2009 $184,602.27 $924,967.88 $492,924.89 $9,571.28 $607,073.98
Jan-2010 $607,073.98 $553,806.80 $488,139.26 $8,065.95 $664,675.57
Feb-2010 $664,675.57 $0.00 $484,106.28 $0.00 $180,569.29
Mar-2010 $180,569.29 $910,610.98 $484,106.28 $9,736.13 $597,337.86
Apr-2010 $597,337.86 $541,707.85 $479,238.22 $8,211.32 $651,596.17
May-2010 $651,596.17 $0.00 $475,132.55 $0.00 $176,463.62
Jun-2010 $176,463.62 $896,006.78 $475,132.55 $9,903.83 $587,434.02
Jul-2010 $587,434.02 $529,390.89 $470,180.63 $8,359.29 $638,284.99
Aug-2010 $638,284.99 $0.00 $466,001.00 $0.00 $172,283.99
Sep-2010 $172,283.99 $881,151.02 $466,001.00 $10,074.43 $577,359.58
Oct-2010 $577,359.58 $516,851.96 $460,963.78 $8,509.91 $624,737.85
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov-2010 $624,737.85 $0.00 $456,708.82 $0.00 $168,029.03
Dec-2010 $168,029.03 $866,039.38 $456,708.82 $10,247.97 $567,111.62
Jan-2011 $567,111.62 $504,087.07 $451,584.84 $8,663.28 $610,950.57
Feb-2011 $610,950.57 $0.00 $447,253.19 $0.00 $163,697.38
Mar-2011 $163,697.38 $850,667.44 $447,253.19 $10,424.49 $556,687.14
Apr-2011 $556,687.14 $491,092.13 $442,040.95 $8,819.43 $596,918.89
May-2011 $596,918.89 $0.00 $437,631.23 $0.00 $159,287.66
Jun-2011 $159,287.66 $835,030.71 $437,631.23 $10,604.04 $546,083.10
Jul-2011 $546,083.10 $477,862.99 $432,329.21 $8,978.39 $582,638.49
Aug-2011 $582,638.49 $0.00 $427,840.02 $0.00 $154,798.47
Sep-2011 $154,798.47 $819,124.64 $427,840.02 $10,786.69 $535,296.40
Oct-2011 $535,296.40 $464,395.42 $422,446.67 $9,140.21 $568,104.94
Nov-2011 $568,104.94 $0.00 $417,876.57 $0.00 $150,228.37
Dec-2011 $150,228.37 $802,944.59 $417,876.57 $10,972.49 $524,323.90
Jan-2012 $524,323.90 $450,685.11 $412,390.32 $11,433.70 $551,184.99
Feb-2012 $551,184.99 $0.00 $406,673.47 $0.00 $144,511.52
Mar-2012 $144,511.52 $786,485.84 $406,673.47 $11,161.49 $513,162.40
Apr-2012 $513,162.40 $433,534.57 $401,092.72 $11,638.85 $533,965.40
May-2012 $533,965.40 $0.00 $395,273.30 $0.00 $138,692.10
Jun-2012 $138,692.10 $769,743.59 $395,273.30 $11,353.75 $501,808.64
Jul-2012 $501,808.64 $416,076.32 $389,596.42 $11,847.68 $516,440.86
Aug-2012 $516,440.86 $0.00 $383,672.59 $0.00 $132,768.27
Sep-2012 $132,768.27 $752,712.95 $383,672.59 $11,549.33 $490,259.30
Oct-2012 $490,259.30 $398,304.82 $377,897.92 $12,060.25 $498,605.95
Nov-2012 $498,605.95 $0.00 $371,867.80 $0.00 $126,738.15
Dec-2012 $126,738.15 $735,388.96 $371,867.80 $11,748.27 $478,511.04
Jan-2013 $478,511.04 $380,214.46 $365,993.67 $12,942.25 $479,789.58
Feb-2013 $479,789.58 $0.00 $359,522.55 $0.00 $120,267.03
Mar-2013 $120,267.03 $717,766.57 $359,522.55 $11,950.63 $466,560.42
Apr-2013 $466,560.42 $360,801.10 $353,547.24 $13,175.63 $460,638.65
May-2013 $460,638.65 $0.00 $346,959.43 $0.00 $113,679.22
Jun-2013 $113,679.22 $699,840.62 $346,959.43 $12,156.47 $454,403.94
Jul-2013 $454,403.94 $341,037.65 $340,881.19 $13,413.23 $441,147.17
Aug-2013 $441,147.17 $0.00 $334,174.57 $0.00 $106,972.60
Sep-2013 $106,972.60 $681,605.91 $334,174.57 $12,365.88 $442,038.06
Oct-2013 $442,038.06 $320,917.79 $327,991.63 $13,655.13 $421,309.09
Nov-2013 $421,309.09 $0.00 $321,164.06 $0.00 $100,145.03
Dec-2013 $100,145.03 $663,057.10 $321,164.06 $12,578.89 $429,459.18
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Jan-2014 $429,459.18 $300,435.07 $314,874.62 $13,901.42 $401,118.21
Feb-2014 $401,118.21 $0.00 $307,923.90 $0.00 $93,194.31
Mar-2014 $93,194.31 $644,188.78 $307,923.90 $12,795.55 $416,663.64
Apr-2014 $416,663.64 $279,582.95 $301,526.13 $14,152.16 $380,568.30
May-2014 $380,568.30 $0.00 $294,450.06 $0.00 $86,118.24
Jun-2014 $86,118.24 $624,995.46 $294,450.06 $13,015.96 $403,647.68
Jul-2014 $403,647.68 $258,354.73 $287,942.08 $14,407.41 $359,652.92
Aug-2014 $359,652.92 $0.00 $280,738.38 $0.00 $78,914.54
Sep-2014 $78,914.54 $605,471.54 $280,738.38 $17,076.82 $386,570.88
Oct-2014 $386,570.88 $236,743.63 $272,199.98 $14,667.29 $336,447.24
Nov-2014 $336,447.24 $0.00 $264,866.34 $0.00 $71,580.90
Dec-2014 $71,580.90 $579,856.32 $264,866.34 $17,370.96 $369,199.92
Jan-2015 $369,199.92 $214,742.71 $256,180.86 $14,931.87 $312,829.90
Feb-2015 $312,829.90 $0.00 $248,714.93 $0.00 $64,114.97
Mar-2015 $64,114.97 $553,799.87 $248,714.93 $17,670.17 $351,529.74
Apr-2015 $351,529.74 $192,344.93 $239,879.84 $15,201.22 $288,793.61
May-2015 $288,793.61 $0.00 $232,279.24 $0.00 $56,514.37
Jun-2015 $56,514.37 $527,294.60 $232,279.24 $17,974.55 $333,555.18
Jul-2015 $333,555.18 $169,543.12 $223,291.96 $15,475.45 $264,330.89
Aug-2015 $264,330.89 $0.00 $215,554.24 $0.00 $48,776.65
Sep-2015 $48,776.65 $500,332.78 $215,554.24 $18,284.17 $315,271.02
Oct-2015 $315,271.02 $146,329.96 $206,412.16 $15,754.61 $239,434.21
Nov-2015 $239,434.21 $0.00 $198,534.86 $0.00 $40,899.35
Dec-2015 $40,899.35 $472,906.54 $198,534.86 $18,599.11 $296,671.92
Jan-2016 $296,671.92 $122,698.03 $189,235.31 $16,038.86 $214,095.78
Feb-2016 $214,095.78 $0.00 $181,215.87 $0.00 $32,879.91
Mar-2016 $32,879.91 $445,007.89 $181,215.87 $18,919.49 $277,752.44
Apr-2016 $277,752.44 $98,639.75 $171,756.13 $16,328.24 $188,307.82
May-2016 $188,307.82 $0.00 $163,592.02 $0.00 $24,715.80
Jun-2016 $24,715.80 $416,628.68 $163,592.02 $19,245.38 $258,507.08
Jul-2016 $258,507.08 $74,147.41 $153,969.34 $16,622.83 $162,062.32
Aug-2016 $162,062.32 $0.00 $145,657.93 $0.00 $16,404.39
Sep-2016 $16,404.39 $387,760.63 $145,657.93 $19,576.87 $238,930.22
Oct-2016 $238,930.22 $49,213.16 $135,869.50 $16,922.77 $135,351.11
Nov-2016 $135,351.11 $0.00 $127,408.11 $0.00 $7,943.00
Dec-2016 $7,943.00 $358,395.34 $127,408.11 $19,914.09 $219,016.14
Jan-2017 $219,016.14 $23,829.01 $117,451.07 $3,856.21 $121,537.87
Feb-2017 $121,537.87 $0.00 $115,522.97 $0.00 $6,014.90
</TABLE>
<PAGE>
DAIWA/LEGG MASON EXHIBIT X SUMMARY
QUARTERLY INTEREST EXCESS SCHEDULE
LOAN CONTROL #1, 2 AND 3
<TABLE>
<CAPTION>
(-)
(+) MONTHLY CASH (-)
QUARTERLY FLOW ATTRIBUTABLE TO
P&I INTEREST QUARTERLY PAY QUARTERLY
ADVANCE BEGINNING CASH FLOW INTEREST DEPOSITS & INTEREST ENDING
DATE BALANCE FROM LOANS SERVICER/TRUSTEE EXCESS BALANCE
------- --------- ---------- -------------------- --------- -------
<S> <C> <C> <C> <C> <C>
Mar-2017 $6,014.90 $328,524.23 $115,522.97 $20,257.10 $198,759.06
Apr-2017 $198,759.06 $18,044.71 $105,394.43 $3,932.07 $107,477.27
May-2017 $107,477.27 $0.00 $103,428.40 $0.00 $4,048.87
Jun-2017 $4,048.87 $298,138.59 $103,428.40 $20,606.02 $178,153.04
Jul-2017 $178,153.04 $12,146.61 $93,125.39 $4,009.42 $93,164.84
Aug-2017 $93,164.84 $0.00 $91,120.68 $0.00 $2,044.16
Sep-2017 $2,044.16 $267,229.55 $91,120.68 $20,960.95 $157,192.08
Oct-2017 $157,192.08 $6,132.47 $80,640.20 $4,088.31 $78,596.04
Nov-2017 $78,596.04 $0.00 $78,596.04 $0.00 $0.00
Dec-2017 $0.00 $235,788.11 $78,596.04 $21,322.01 $135,870.06
Jan-2018 $135,870.06 $0.00 $67,935.03 $0.00 $67,935.03
Feb-2018 $67,935.03 $0.00 $67,935.03 $0.00 $0.00
Mar-2018 $0.00 $203,805.09 $67,935.03 $21,689.28 $114,180.78
Apr-2018 $114,180.78 $0.00 $57,090.39 $0.00 $57,090.39
May-2018 $57,090.39 $0.00 $57,090.39 $0.00 $0.00
Jun-2018 $0.00 $171,271.16 $57,090.39 $22,062.89 $92,117.88
Jul-2018 $92,117.88 $0.00 $46,058.94 $0.00 $46,058.94
Aug-2018 $46,058.94 $0.00 $46,058.94 $0.00 $0.00
Sep-2018 $0.00 $138,176.84 $46,058.94 $22,442.92 $69,674.98
Oct-2018 $69,674.98 $0.00 $34,837.49 $0.00 $34,837.49
Nov-2018 $34,837.49 $0.00 $34,837.49 $0.00 $0.00
Dec-2018 $0.00 $104,512.46 $34,837.49 $22,829.49 $46,845.48
Jan-2019 $46,845.48 $0.00 $23,422.74 $0.00 $23,422.74
Feb-2019 $23,422.74 $0.00 $23,422.74 $0.00 $0.00
Mar-2019 $0.00 $70,268.22 $23,422.74 $23,222.74 $23,622.74
Apr-2019 $23,622.74 $0.00 $11,811.37 $0.00 $11,811.37
May-2019 $11,811.37 $0.00 $11,811.37 $0.00 $0.00
Jun-2019 $0.00 $35,434.12 $11,811.37 $23,622.69 $0.00
-----------------------------------------------------------
114,757,443.14 114,202,567.21 1,326,212.49
-----------------------------------------------------------
</TABLE>
1998-C1-CTL EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Agreement"), is between Merrill Lynch Mortgage Investors, Inc., a Delaware
corporation (the "Company"), and Daiwa Finance Corp. (the "Mortgage Loan
Seller"). The Mortgage Loan Seller agrees to sell, and the Company agrees to
purchase, the mortgage loans (the "Mortgage Loans") described in, and set forth
in, the Mortgage Loan Schedule attached as Exhibit A to this Agreement (the
"Mortgage Loan Schedule"). The Company intends to deposit the Mortgage Loans and
other assets into a trust (the "Trust") and cause the creation of a series of
certificates to be known as Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL (the "Certificates"), evidencing
beneficial ownership interests in the Mortgage Loans and other assets
(including, without limitation, other mortgage loans), under a Pooling and
Servicing Agreement, to be dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, GMAC Commercial Mortgage
Corporation, as master servicer and special servicer (in each capacity, the
"Master Servicer" and "Special Servicer", respectively) and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). Capitalized terms
used but not otherwise defined herein shall have the respective meanings given
to them in the Pooling and Servicing Agreement without giving effect to any
amendment thereto unless the Mortgage Loan Seller has given its consent to such
amendment in writing and signed by a duly authorized officer of the Mortgage
Loan Seller.
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans shall consist of a cash amount equal to (i) 100%
of the outstanding principal balance of the Mortgage Loans as of the Cut-Off
Date plus (ii) interest accrued on the Mortgage Loans at the related Mortgage
Rate up to but excluding the Closing Date. The Purchase Price amount shall be
payable by the Company to the Mortgage Loan Seller on March 31,1998 or such
other date as shall be mutually acceptable to the parties hereto (the "Closing
Date") in immediately available funds. The closing for the purchase and sale of
the Mortgage Loans shall take place at the offices of Willkie Farr & Gallagher,
153 East 53rd Street, New York, New York 10022, at 10:00a.m. (New York time),
on the Closing Date.
On the Closing Date, the Mortgage Loan Seller shall sell, transfer, assign,
set over and convey to the Company, without recourse, and the Company shall
purchase, all the right, title and interest of the Mortgage Loan Seller in and
to the Mortgage Loans, including all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date, together with all of the
Mortgage Loan Sellers right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance policies. All
scheduled payments of interest and principal due before the Cut-Off Date but
collected on or after the Cut-Off Date, and recoveries of
<PAGE>
interest and principal collected before the Cut-Off Date, shall belong to, and
be promptly remitted to the Mortgage Loan Seller. The Company hereby directs the
Mortgage Loan Seller, and the Mortgage Loan Seller hereby agrees, to deliver to
each of the Trustee, the Master Servicer and the Special Servicer all documents,
instruments and agreements required to be delivered by the Company to the
Trustee, the Master Servicer and the Special Servicer under Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of such
Section 2.01 and such other documents, instruments and agreements as the Company
or the Trustee, the Master Servicer and the Special Servicer shall reasonably
request. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans.
2. Representations and Warranties and Covenants. (a) The Mortgage Loan
Seller hereby represents and warrants to the Company as of the date hereof and
as of Closing Date that:
(i) The Mortgage Loan Seller is a New York corporation duly organized,
validly existing and in good standing under the laws of the State of New
York, with the necessary corporate power and authority to own its assets
and conduct its business as now being conducted, is duly qualified as a
foreign corporation in good standing in all jurisdictions in which the
ownership or lease of its property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the value of the Mortgage Loans and the
ability of the Mortgage Loan Seller to perform its obligations hereunder,
and the Mortgage Loan Seller has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement by it,
and has the necessary corporate power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated hereby,
including, but not limited to, the power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans in accordance with this
Agreement;
(ii) This Agreement has been duly authorized, executed and delivered
by the Mortgage Loan Seller and assuming the due authorization, execution
and delivery by the Company, will constitute a legal, valid and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
-2-
<PAGE>
creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability 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 Mortgage
Loan Seller and the performance of its obligations hereunder (1)will not
conflict with any provision of any law or regulation to which the Mortgage
Loan Seller is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
any of the Mortgage Loan Sellers organizational documents or any agreement
or instrument to which the Mortgage Loan Seller is a party or by which it
is bound, or any order or decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on any of the Mortgage
Loan Sellers assets or property, in each case which would materially and
adversely affect the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement; and (2)does not require the
consent of any third party or such consent has been obtained.
(iv) There is no action, suit, proceeding or investigation pending or,
to the knowledge of the Mortgage Loan Seller, threatened against the
Mortgage Loan Seller in any court or by or before any other governmental
agency or instrumentality which, in the Mortgage Loan Sellers good faith
and reasonable judgment, would materially and adversely affect the validity
of the Mortgage Loans or the ability of the Mortgage Loan Seller to enter
into or which would be likely to impair materially and adversely the
ability of the Mortgage Loan Seller to carry out the transactions
contemplated by, this Agreement;
(v) The Mortgage Loan 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 governmental agency, which default might have
consequences that, in the Mortgage Loan Sellers good faith and reasonable
judgment, would materially and adversely affect the condition (financial or
other) or operations of the Mortgage Loan Seller or its properties or
-3-
<PAGE>
might have consequences that would materially and adversely affect its
performance hereunder;
(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 Mortgage Loan Seller of or compliance by the Mortgage
Loan Seller with this Agreement or the consummation of the transactions
contemplated by this Agreement, other than those which have been obtained
by the Mortgage Loan Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loans by
the Mortgage Loan Seller to the Company is not subject to bulk transfer
laws or any similar statutory provisions in effect in any applicable
jurisdiction; and
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller will report the
transfer of the Mortgage Loans to the Company as a sale of the Mortgage
Loans to the Company. The consideration received by the Mortgage Loan
Seller upon the sale of the Mortgage Loans to the Company will constitute
reasonably equivalent value and fair consideration for the Mortgage Loans.
The Mortgage Loan Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Mortgage Loans to
the Company. The Mortgage Loan Seller is not selling the Mortgage Loans to
the Company with any intent to hinder, delay or defraud any of the
creditors of the Mortgage Loan Seller.
(b) The Mortgage Loan Seller hereby makes the representations and
warranties contained in Schedule I, Schedule II and Schedule III with respect to
each Mortgage Loan as of the date specified therein or, if no such date is
specified, as of the Closing Date.
(c) The Mortgage Loan Seller hereby covenants that it shall, within 10 days
of the Closing Date, notify the Lease Enhancement Policy Issuer and the RVI
Insurer that (i) both the Master Servicer and Special Servicer shall be sent
notices under each Lease Enhancement Policy and RVI Policy, and (ii) the Master
Servicer c/o Norwest Bank Minnesota, National Association, as Trustee for the
registered holders of Merrill Lynch Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1-CTL, shall be the loss payee under
each RVI Policy and the named insured under each Lease Enhancement Policy.
-4-
<PAGE>
3. Notice of Breach; Cure and Repurchase.
(a) Pursuant to the Pooling and Servicing Agreement, the Mortgage Loan
Seller and the Company shall be given notice of any Breach or Document Defect
that materially and adversely affects the value of such Mortgage Loan or the
interests of the holders of the Certificates therein.
(b) Upon notice pursuant to Section 3(a) herein, the Mortgage Loan Seller
shall, not later than 90 days from the Mortgage Loan Sellers receipt of notice
of such Breach or Document Defect (or, in the case of a Document Defect or
Breach relating to a Mortgage Loan not being a qualified mortgage within the
meaning of the Section 860G(a)(3) of the Internal Revenue Code of 1986, as
amended (a "Qualified Mortgage"), not later than 90 days of any party to this
Agreement or to the Pooling and Servicing Agreement discovering such Document
Defect or Breach), if such Breach or Document Defect shall materially and
adversely affect the value of such Mortgage Loan or the interests of the holders
of the Certificates therein, cure such Document Defect or Breach, as the case
may be, in all material respects or, if such Document Defect or Breach (other
than omissions solely due to a document not having been returned by the related
recording office) cannot be cured within the periods hereinafter set forth,
repurchase the affected Mortgage Loan at the applicable Repurchase Price (as
defined below); provided, however, that if such Document Defect or Breach is
capable of being cured but not within such 90-day period, such Document Defect
or Breach does not relate to any Mortgage Loan not being treated as a Qualified
Mortgage, and the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Document Defect or Breach within such 90-day
period, the Mortgage Loan Seller shall (A) with respect to any Breach, have an
additional 90 day period to complete such cure (or failing such cure, to
complete such repurchase) and (B) with respect to any Document Defect, have
additional 90 day periods up to but not exceeding the second anniversary of the
Closing Date to complete such cure (or failing such cure, to complete such
repurchase); provided, further, that with respect to each additional 90-day
period, the Mortgage Loan Seller shall have delivered an Officers 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 or additional 90-day
period, as applicable, and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such Document Defect or Breach will be cured within such
additional 90-day period. If the affected Mortgage Loan is to be repurchased,
Mortgage Loan Seller shall remit the Repurchase Price in immediately available
funds to the Trustee. The delivery of a binding commitment to issue a policy of
lenders title insurance in lieu of the delivery of the actual policy of
lenders 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
-5-
<PAGE>
its behalf not later than the 90th day following the Closing Date.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan to be
repurchased pursuant to this Agreement and Section2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement without giving effect to any amendment
thereto unless the Mortgage Loan Seller has given its consent to such amendment
in writing and signed by a duly authorized officer of the Mortgage Loan Seller.
(c) Upon any repurchase of a Mortgage Loan contemplated by Section 3(b)
above, the Trustee, the Servicer and the Special Servicer shall each tender to
the 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 that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the Mortgage Loan
Seller.
(d) This Section 3 of this Agreement provides the sole and exclusive remedy
available to the Company, the Trustee, the Certificateholders, or the Trustee on
behalf of the Certificateholders or any other party, respecting any Document
Defect or any Breach.
(e) Subject to the terms of this Agreement, the Mortgage Loan Seller hereby
acknowledges the assignment by the Company to the Trustee, as trustee under the
Pooling and Servicing Agreement, for the benefit of the Certificateholders, of
the representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to repurchase a Mortgage Loan pursuant to this Section. The
Trustee or its designee may enforce such obligations as provided in Section 8
hereof.
4. Representations, Warranties and Agreements of Company.
(a) The Company hereby represents and warrants to the Mortgage Loan Seller,
as of the date hereof (or such other date as is specified in the related
representation or warranty), as follows:
(i) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business,
is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a
-6-
<PAGE>
material adverse effect on the ability of the Company to perform its
obligations hereunder, and the Company has taken all necessary action to
authorize the execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby;
(ii) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors rights generally and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law);
(iii) The execution and delivery of this Agreement by the Company and
the performance of its obligations hereunder will not conflict with any
provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of
the terms, conditions or provisions of any of the Companys organizational
documents or any agreement or instrument to which the Company is a party or
by which it is bound, or any law, rule, regulation, judgment, writ,
injunction, order or decree applicable to the Company, or result in the
creation or imposition of any lien on any of the Companys assets or
property, in each case which would materially and adversely affect the
ability of the Company to carry out the transactions contemplated by this
Agreement;
(iv) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Company, threatened against the Company in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement
or any action taken in connection with the obligations of the Company
contemplated herein, or which would be likely to impair materially the
ability of the Company to perform under the terms of this Agreement;
(v) The Company is not in default with respect to any order or decree
of any court or any
-7-
<PAGE>
order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or
operations of the Company or its properties or might have consequences that
would materially and adversely affect its performance hereunder;
(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 Company of or compliance by the Company with this
Agreement or the consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the Company; and
(vii) Under GAAP and for federal income tax purposes, the Company will
report the transfer of the Mortgage Loans by the Mortgage Loan Seller to
the Company as a sale of the Mortgage Loans to the Company.
5. Companys Conditions to Closing.
The obligations of the Company under this Agreement shall be subject to the
satisfaction, on the Closing Date, or such other date specified herein, of the
following conditions:
(a) The obligations of the Mortgage Loan Seller required to be performed by
it at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Mortgage Loan Seller under this Agreement shall be true and
correct in all material respects, and no event shall have occurred which, with
notice or the passage of time, or both, would constitute a material default
under this Agreement.
(b) The Company or its designee shall have received all of the following
closing documents, in such forms as are agreed upon and acceptable to the
Company and in form and substance satisfactory to the Company, the Underwriters
and their respective counsel, duly executed by all signatories other than the
Company as required pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage Files shall be delivered to and held by the Trustee on
behalf of the Company;
(ii) the final Mortgage Loan Schedule;
(iii) an officers certificate from
-8-
<PAGE>
the Mortgage Loan Seller dated as of the Closing Date, in the form attached
hereto as Exhibit B;
(iv) an opinion of Mortgage Loan Sellers counsel, subject to
customary exceptions and carve-outs, in form and substance reasonably
acceptable to the Company and its counsel and the Rating Agencies, which
states in substance the opinions set forth on Exhibit C hereto, and
(v) such other documents, certificates and opinions as the Company may
reasonably request to effectuate the transactions contemplated by this
Agreement.
(c) The Mortgage Loan Seller hereby agrees to furnish such other
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or itself as may be reasonably requested by the Company in order
for the Company to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement, the Pooling and Servicing Agreement or this Agreement.
6. Indemnification and Contribution.
(a) The Mortgage Loan Seller shall indemnify and hold harmless the Company,
the Underwriter, their respective officers and directors, and each person, if
any, who controls the Company or the Underwriter within the meaning of either
Section15 of the Securities Act of 1933, as amended (the "1933 Act") or
Section20 of the Securities Exchange Act of 1934, as amended (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) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact relating to the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Mortgage Loan Seller
contained in (A)the Prospectus Supplement and the Memorandum (insofar as the
following are incorporated as part of the Memorandum) under the headings
"Summary of the Prospectus Supplement-The Mortgage Pool" or "Summary of the
Prospectus Supplement-Mortgage Loan Sellers", "Risk Factors-The Mortgage Loans"
and "Description of the Mortgage Pool" and on Annex A to the Prospectus
Supplement, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing or (B) any
items similar to Computational Materials and ABS Term Sheets forwarded to
prospective investors in the Non-
-9-
<PAGE>
Registered Certificates, or (ii) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; but, in the case of (i) and (ii),
only if and to the extent that any such untrue statement or alleged untrue
statement or omission or alleged omission (I) arises out of or is based upon an
untrue statement or omission with respect to the Mortgage Loans, the related
Mortgagors or the related Mortgaged Properties contained in the Master Tape (it
being herein acknowledged that the Master Tape was used to prepare the
Prospectus Supplement including without limitation Annex A thereto, the
Memorandum, the Diskette, the Computational Materials and ABS Term Sheets with
respect to the Registered Certificates and any items similar to Computational
Materials and ABS Term Sheets forwarded to prospective investors in the
Non-Registered Certificates), (II) is contained in the information regarding the
Mortgage Loans, the related Mortgagor, the related Mortgaged Property or the
Mortgage Loan Seller set forth in the Prospectus Supplement and the Memorandum
(insofar as the following are incorporated as part of the Memorandum) under the
headings "Summary of the Prospectus Supplement-The Mortgage Pool" or "Summary of
the Prospectus Supplement-Mortgage Loan Sellers", "Risk Factors-The Mortgage
Loans" and "Description of the Mortgage Pool" or on Annex A to the Prospectus
Supplement; provided that the foregoing were provided to the Mortgage Loan
Seller for its review, or (III) arises out of or is based upon a breach of the
representations and warranties of the Mortgage Loan Seller set forth in or made
pursuant to Section2 (such representations and warranties, together with the
information described in the preceding clauses I and II, the "Mortgage Loan
Seller Information"); provided that the indemnification provided by this
Section 6 shall not apply to the extent that such untrue statement or omission
was made as a result of an error in (x) the manipulation of, or (y) any
calculations based upon, or (z) any aggregation (other than an aggregation made
in the Master Tape by the Mortgage Loan Seller) of, the information regarding
the Mortgage Loans, the related Mortgagor, the related Mortgaged Property or the
Mortgage Loan Seller set forth in the Master Tape and Annex A to the Prospectus
Supplement. This indemnity agreement will be in addition to any liability which
the Mortgage Loan Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-38073 filed by the Company on Form S-3, including
without limitation exhibits thereto and information incorporated therein by
reference; "Prospectus" shall mean the prospectus dated February 25, 1998, as
supplemented by the prospectus supplement dated March 25,1998 (the "Prospectus
Supplement"), relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated March
31, 1998, relating to the Non-Registered Certificates; "Registered Certificates"
shall mean the Class A-1, Class A-2,
-10-
<PAGE>
Class A-3, Class A-PO, Class B, Class C, Class D, Class E and Class IO
Certificates; "Non-Registered Certificates" shall mean the Certificates other
than the Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May20,1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May27,1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February17,1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder letters, the "No-Action Letters"); "Diskette"
shall mean the diskette attached to each of the Prospectus and the Memorandum;
and "Master Tape" shall mean the compilation of information and data regarding
the Mortgage Loans covered by the Independent Accountants' Report on Applying
Agreed-Upon Procedures dated March 25, 1998 and rendered by Deloitte & Touche
LLP (a "hard copy" of which Master Tape was initialed on behalf of the Mortgage
Loan Seller and the Company).
(b) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 6, except to the extent that it has been prejudiced in any
material respect, or from any liability which it may have, otherwise than under
this Section 6. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying
-11-
<PAGE>
party will not be liable to such indemnified party for legal or other expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable), approved by the Company representing the
indemnified parties under subsection (a) of this Section 6 who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i)or (iii).
(c) If the indemnification provided for in this Section 6 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 6, then the Mortgage Loan Seller and the Company shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, in such proportion as is appropriate to reflect the relative fault of the
Mortgage Loan Seller on the one hand and the Company on the other in connection
with the statement or omission that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Mortgage Loan Seller or the Company and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Mortgage Loan Seller and the Company agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were to be determined by per capita allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not also guilty of
such fraudulent misrepresentation.
-12-
<PAGE>
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at World Financial Center, New
York, New York 10281, attention: Bruce L. Ackerman fax number: (212) 449-7684,
or, if sent to the Mortgage Loan Seller, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at Financial Square, 32 Old
Slip, New York, New York 10005-3538, attention: Samuel Kirschner, fax number:
(212) 612-6976, with a copy to the attention of the General Counsel, fax number:
(212) 612-7155.
8. Trust as Beneficiary. The representations, warranties and agreements
made by the Mortgage Loan Seller in this Agreement are made for the benefit of,
and, to the extent they are assigned by the Company to the Trustee under the
Pooling and Servicing Agreement, may be enforced by or on behalf of, the
Trustee, the Servicer or the Special Servicer, as provided in the Pooling and
Servicing Agreement, to the same extent that the Company has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein.
9. Miscellaneous. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the same instrument. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns, and no other person will have any
right or obligation hereunder, other than as provided herein.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Mortgage Loan Seller and the Company submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive the transfer and sale of the Mortgage Loans to the Company and by the
Company to the Trustee notwithstanding any language to the contrary contained in
any endorsement of any Mortgage Loan; provided that the representations,
warranties and agreements shall terminate upon the termination of the Pooling
and Servicing Agreement.
11. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, this Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
12. Further Assurances. The Mortgage Loan Seller and the Company agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time,
-13-
<PAGE>
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement.
13. Amendments. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by a duly authorized
officer of the party against whom enforcement of such change, waiver, discharge
or termination is sought to be enforced. This Agreement may not be changed or
waived in any manner which would have a material adverse effect on
Certificateholders without the prior written consent of the Trustee.
[Signature page follows]
-14-
<PAGE>
IN WITNESS WHEREOF, the Company and the Mortgage Loan Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
DAIWA FINANCE CORP.
By: /s/ HIROKI NOMURA
-------------------------------------------
Name: Hiroki Nomura
Title: Authorized Signatory
MERRILL LYNCH MORTGAGE INVESTORS, INC.
By: /s/ BRUCE ACKERMAN
-------------------------------------------
Name: Bruce Ackerman
Title: Authorized Signatory
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Allegheny Hospitals, Centennial 200 W. Lancaster Ave. Wayne PA 19087
2 Allegheny General Hospital 420 East North St. Pittsburgh PA 15212
3 Allegheny General Hospital Federal St./W.N. Ave Pittsburgh PA 15212
4 Baptist Hospital, Inc. 2011 Murphy Nashville TN 37203
5 Baptist Hospital, Inc. 360 Wallace Rd. Nashville TN 37211
6 Circuit City Stores, Inc. 1505 S. Colorado Blvd. Denver CO 80210
7 Circuit City Stores, Inc. 6353 S. Semoran Blvd. Orlando FL 32801
8 Circuit City Stores, Inc. 1901 Okeechobee Blvd. West Palm Beach FL 33409
9 Circuit City Stores, Inc. 4483 US Route 14 Crystal Lake IL 60014
10 Circuit City Stores, Inc. 8405 E. Kellog St. Wichita KS 67207
11 Circuit City Stores, Inc. 36300 Warren Rd Westland MI 48185
12 Circuit City Stores, Inc. 4600 28th Street SE Kentwood MI 49508
13 Circuit City Stores, Inc. 7230 Market St. Boardman OH 44512
14 Circuit City Stores, Inc. 3475 William Penn HWY Wilkins Township PA 15146
15 Circuit City Stores, Inc. 3423 Clemson Blvd. Anderson SC 29621
16 Eckerd Corp. 414 Atlantic Blvd. Neptune Beach FL 32266
17 Federal Insurance Company 12 Vreeland Rd. Florham Park NJ 07932
18 Fred Meyer, Inc. 8955 S/E 82nd Ave. Portland OR 97266
19 Fred Meyer, Inc. 16600 S/E McGillivray Blvd Vancouver WA 98683
20 Fred Meyer, Inc. 20901 Highway 410 Bonny Lake WA 98390
21 Giant Food, Inc. 11200 Main Street Fairfax VA 22030
24 Health Insurance Plan of
Greater New York 96-10 Metropolitan Ave. Forest Hills NY 11375
25 Heilig-Meyers Company 3215 Fairview Dr. Antioch CA 94509
26 Heilig-Meyers Company 700 Sereno Drive Vallejo CA 94589
27 Heilig-Meyers Company 5455 Mountainview Dr. Redding CA 96003
28 Heilig-Meyers Company 415 S. Roosevelt Ave. Burlington IA 52601
29 Heilig-Meyers Company 2514 Westdale Dr., SW Cedar Rapids IA 52404
30 Heilig-Meyers Company 150 John F. Kennedy Rd. Dubuque IA 52002
31 Heilig-Meyers Company 4141 Mirage Ridge Waterloo IA 50701
32 Heilig-Meyers Company 1763 Filmore St. Twin Falls ID 83301
33 Heilig-Meyers Company 6910 Fairview Ave Boise ID 83704
34 Heilig-Meyers Company 1900 52nd Ave. Moline IL 61265
35 Heilig-Meyers Company 255 South 36th Street Quincy IL 62301
36 Heilig-Meyers Company 10530 Airline HWY Baton Rouge LA 70816
37 Heilig-Meyers Company 1444 Grand Ave Billings MT 59102
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
SCHEDULED
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 9,201,195.07 188,600.00 7.870% 235 No Yes No - 10/10/2017
2 35,340,415.71 678,614.86 7.030% 223 No Yes No - 10/01/2016
3 67,170,088.09 1,241,762.50 6.890% 255 No Yes Yes 8/31/1999 06/10/2019
4 19,791,520.71 146,824.61 7.050% 274 No Yes Yes 8/31/1998 01/10/2021
5 3,449,962.45 24,784.15 6.570% 263 No Yes No - 02/10/2020
6 6,888,745.84 58,630.00 8.610% 259 No Yes No - 10/05/2019
7 12,121,850.51 96,715.75 7.640% 252 No Yes No - 03/05/2019
8 7,091,819.77 56,583.00 7.640% 252 No Yes No - 03/05/2019
9 5,009,996.97 42,640.00 8.610% 259 No Yes No - 10/05/2019
10 5,732,592.69 48,790.00 8.610% 259 No Yes No - 10/05/2019
11 8,275,356.41 66,026.00 7.640% 252 No Yes No - 03/05/2019
12 5,661,718.21 45,172.75 7.640% 252 No Yes No - 03/05/2019
13 5,464,462.52 43,598.92 7.640% 252 No Yes No - 03/05/2019
14 9,557,521.11 76,255.92 7.640% 252 No Yes No - 03/05/2019
15 3,343,954.14 26,680.17 7.640% 252 No Yes No - 03/05/2019
16 1,876,468.15 14,836.40 7.190% 220 No Yes No - 07/01/2016
17 17,912,874.88 145,925.57 6.900% 172 No Yes No - 07/01/2012
18 18,109,169.54 142,072.50 7.730% 268 No Yes No - 07/01/2020
19 13,524,712.95 105,848.17 7.700% 268 No Yes No - 07/01/2020
20 13,386,705.68 104,768.08 7.700% 268 No Yes No - 07/01/2020
21 4,719,750.33 35,615.42 7.620% 291 No Yes No - 06/01/2022
24 15,309,448.71 114,840.86 8.350% 299 No Yes No - 02/01/2023
25 2,403,348.19 18,784.89 7.480% 257 No Yes No - 08/10/2019
26 1,229,460.85 9,609.63 7.480% 257 No Yes No - 08/10/2019
27 1,292,169.61 10,099.77 7.480% 257 No Yes No - 08/10/2019
28 3,175,950.15 24,823.65 7.480% 257 No Yes No - 08/10/2019
29 1,667,288.59 13,031.75 7.480% 257 No Yes No - 08/10/2019
30 1,498,986.70 11,716.28 7.480% 257 No Yes No - 08/10/2019
31 1,566,990.92 12,247.81 7.480% 257 No Yes No - 08/10/2019
32 1,268,563.31 9,915.26 7.480% 257 No Yes No - 08/10/2019
33 2,012,010.19 15,726.14 7.480% 257 No Yes No - 08/10/2019
34 1,615,316.60 12,625.53 7.480% 257 No Yes No - 08/10/2019
35 1,635,959.80 12,786.88 7.480% 257 No Yes No - 08/10/2019
36 800,156.51 6,254.13 7.480% 257 No Yes No - 08/10/2019
37 955,606.77 7,469.15 7.480% 257 No Yes No - 08/10/2019
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
INITIAL QUARTERLY CAPITALIZED MORTGAGE
CONTROL FEE/ LEASE INTEREST RESERVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Fee Bondable 0.040% Daiwa GMACCM
2 Leasehold Bondable 0.040% Daiwa GMACCM
3 Fee Bondable $771,336.53 $7,029,458.64 0.040% Daiwa GMACCM
4 Leasehold Bondable $3,730,567.35 0.040% Daiwa GMACCM
5 Fee Bondable 0.040% Daiwa GMACCM
6 Fee Bondable 0.040% Daiwa GMACCM
7 Fee Bondable 0.040% Daiwa GMACCM
8 Fee Bondable 0.040% Daiwa GMACCM
9 Fee Bondable 0.040% Daiwa GMACCM
10 Fee Bondable 0.040% Daiwa GMACCM
11 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
12 Fee Bondable 0.040% Daiwa GMACCM
13 Fee Bondable 0.040% Daiwa GMACCM
14 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
15 Fee Bondable 0.040% Daiwa GMACCM
16 Fee Triple Net 0.040% Daiwa GMACCM
17 Fee Triple Net 0.040% Daiwa GMACCM
18 Fee Bondable 0.040% Daiwa GMACCM
19 Fee Bondable 0.040% Daiwa GMACCM
20 Fee Bondable 0.040% Daiwa GMACCM
21 Leasehold Triple Net 0.040% Daiwa GMACCM
24 Fee Double Net $916.67 0.040% Daiwa GMACCM
25 Fee Bondable 0.040% Daiwa GMACCM
26 Fee Bondable 0.040% Daiwa GMACCM
27 Fee Bondable 0.040% Daiwa GMACCM
28 Fee Bondable 0.040% Daiwa GMACCM
29 Fee Bondable 0.040% Daiwa GMACCM
30 Fee Bondable 0.040% Daiwa GMACCM
31 Fee Bondable 0.040% Daiwa GMACCM
32 Fee Bondable 0.040% Daiwa GMACCM
33 Fee Bondable 0.040% Daiwa GMACCM
34 Fee Bondable 0.040% Daiwa GMACCM
35 Fee Bondable 0.040% Daiwa GMACCM
36 Fee Bondable 0.040% Daiwa GMACCM
37 Fee Bondable 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
38 Heilig-Meyers Company 14255 SW Pacific HWY Tigard OR 97224
39 Heilig-Meyers Company 201 Division Avenue Eugene OR 97404
40 Heilig-Meyers Company 6101 Tualatin Valley Hwy Hillsboro OR 97123
41 Heilig-Meyers Company 3540 Commercial St., SE Salem OR 97302
42 Heilig-Meyers Company 7407 NE Vancouver Plaza Vancouver WA 98662
43 Heilig-Meyers Company 7520 N Division St. North Spokane WA 99208
44 Heilig-Meyers Company South 1807 First St. Yakima WA 98901
45 Home Depot U.S.A., Inc. 7200 S. Cicero Avenue Bedford Park IL 60629
48 Kmart Corp. 310 Gardner Field Rd Taft CA 93268
49 Kmart Corp. Orchard & Clara Aves. Ukiah CA 95482
50 Kmart Corp. 375 E. Allesandro Blvd. Riverside CA 92508
51 Kmart Corp. 33201 Van Dyke Ave. Sterling Heights MI 48312
52 The Times Mirror Company 23252 Moulton Pkwy. Laguna Hills CA 92653
53 County of Monroe 50 West Main St. Rochester NY 14610
54 Nine West Group, Inc. 1111-1113 Westchester Ave. White Plains NY 10604
55 Northwestern Human Services, Inc.
a Northwestern Human Services, Inc. 35 East High Street Philadelphia PA 19144
b Northwestern Human Services, Inc. 235-37 West Schoolhouse Lane Philadelphia PA 19144
c Northwestern Human Services, Inc. 5701 Thomas Ave. Philadelphia PA 19143
d Northwestern Human Services, Inc. 3823 Garrett Road Upper Darby PA 19026
e Northwestern Human Services, Inc. 26 Red Rowan Lane Plymouth Meeting PA 19462
f Northwestern Human Services, Inc. 1237 Tyson Street Philadelphia PA 19111
g Northwestern Human Services, Inc. Road 2 Box 283R Sunbury PA 18360
h Northwestern Human Services, Inc. Road 2 Box 396 Sunbury PA 17801
i Northwestern Human Services, Inc. 9009 Cargill Lane Philadelphia PA 19115
j Northwestern Human Services, Inc. 17 North Wayne Street Lewistown PA 17044
k Northwestern Human Services, Inc. 1616 Gregg Street Philadelphia PA 19115
56 Northwestern Human Services, Inc.
a Northwestern Human Services, Inc. 9425 Stenton Ave Springfield Township PA 19038
b Northwestern Human Services, Inc. 5126 Jack Road St. Thomas Township PA 17252
c Northwestern Human Services, Inc. 620 Germantown Pike White Marsh Township PA 19444
d Northwestern Human Services, Inc. 1134 N. 64th Street Philadelphia PA 19151
e Northwestern Human Services, Inc. Box 9223, Route 209 Stroudsburg PA 18360
f Northwestern Human Services, Inc. 1700 Freeport Road Bethel PA 17046
g Northwestern Human Services, Inc. 1448 Karen Drive Harrisburg PA 17121
h Northwestern Human Services, Inc. 1676 Heilmandale Road North Lebanon PA 17046
i Northwestern Human Services, Inc. 7015 Ridge Avenue Philadelphia PA 19128
j Northwestern Human Services, Inc. 460 Cinnaminson Street Philadelphia PA 19128
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
38 1,691,867.24 13,223.86 7.480% 257 No Yes No - 08/10/2019
39 1,691,867.24 13,223.86 7.480% 257 No Yes No - 08/10/2019
40 1,691,867.24 13,223.86 7.480% 257 No Yes No - 08/10/2019
41 1,714,652.16 13,401.95 7.480% 257 No Yes No - 08/10/2019
42 1,636,373.05 12,790.11 7.480% 257 No Yes No - 08/10/2019
43 1,914,325.06 14,962.62 7.480% 257 No Yes No - 08/10/2019
44 1,229,619.50 9,610.87 7.480% 257 No Yes No - 08/10/2019
45 21,168,826.53 145,645.65 6.960% 235 Insured Yes No - 10/10/2017
48 5,386,097.27 40,895.14 7.810% 300 No Yes No - 03/05/2023
49 7,525,857.47 65,842.03 7.710% 207 No Yes No - 06/05/2015
50 3,046,791.84 23,514.43 7.800% 285 No Yes No - 12/05/2021
51 6,816,611.39 52,958.73 7.790% 279 No Yes No - 06/05/2021
52 3,578,054.58 28,145.02 6.630% 158 No Yes No - 05/01/2011
53 15,884,013.95 120,076.56 6.640% 246 No Yes Yes 9/1/1998 09/01/2018
54 45,888,588.25 420,750.99 9.000% 228 No Yes No - 03/01/2017
55
a 209,085.42 1,663.84 7.400% 115 Tenant Yes No - 10/05/2007
b 1,216,497.00 9,680.51 7.400% 115 Tenant Yes No - 10/05/2007
c 636,760.15 5,067.14 7.400% 115 Tenant Yes No - 10/05/2007
d 826,837.81 6,579.72 7.400% 115 Tenant Yes No - 10/05/2007
e 180,573.77 1,436.95 7.400% 115 Tenant Yes No - 10/05/2007
f 152,062.13 1,210.06 7.400% 115 Tenant Yes No - 10/05/2007
g 123,550.48 983.18 7.400% 115 Tenant Yes No - 10/05/2007
h 133,054.36 1,058.81 7.400% 115 Tenant Yes No - 10/05/2007
i 199,581.54 1,588.21 7.400% 115 Tenant Yes No - 10/05/2007
j 76,031.06 605.03 7.400% 115 Tenant Yes No - 10/05/2007
k 171,069.89 1,361.32 7.400% 115 Tenant Yes No - 10/05/2007
56
a 3,378,049.84 27,277.22 7.460% 112 Tenant Yes No - 07/05/2007
b 159,519.02 1,288.09 7.460% 112 Tenant Yes No - 07/05/2007
c 4,607,284.64 37,203.10 7.460% 112 Tenant Yes No - 07/05/2007
d 75,067.77 606.16 7.460% 112 Tenant Yes No - 07/05/2007
e 215,819.85 1,742.71 7.460% 112 Tenant Yes No - 07/05/2007
f 159,519.02 1,288.09 7.460% 112 Tenant Yes No - 07/05/2007
g 131,368.60 1,060.78 7.460% 112 Tenant Yes No - 07/05/2007
h 159,519.02 1,288.09 7.460% 112 Tenant Yes No - 07/05/2007
i 75,067.77 606.16 7.460% 112 Tenant Yes No - 07/05/2007
j 140,752.08 1,136.55 7.460% 112 Tenant Yes No - 07/05/2007
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL FEE/ LEASE INTEREST RESEREVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
38 Fee Bondable 0.040% Daiwa GMACCM
39 Fee Bondable 0.040% Daiwa GMACCM
40 Fee Bondable 0.040% Daiwa GMACCM
41 Fee Bondable 0.040% Daiwa GMACCM
42 Fee Bondable 0.040% Daiwa GMACCM
43 Fee Bondable 0.040% Daiwa GMACCM
44 Fee Bondable 0.040% Daiwa GMACCM
45 Fee Double Net $305,561.70 0.040% Daiwa GMACCM
48 Leasehold Bondable 0.040% Daiwa GMACCM
49 Leasehold Bondable 0.040% Daiwa GMACCM
50 Leasehold Bondable 0.040% Daiwa GMACCM
51 Leasehold Bondable 0.040% Daiwa GMACCM
52 Fee Double Net 0.040% Daiwa GMACCM
53 Fee & Leasehold Double Net 0.040% Daiwa GMACCM
54 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
55 Bondable
a Fee Bondable 0.040% Daiwa GMACCM
b Fee Bondable 0.040% Daiwa GMACCM
c Fee Bondable 0.040% Daiwa GMACCM
d Fee Bondable 0.040% Daiwa GMACCM
e Fee Bondable 0.040% Daiwa GMACCM
f Fee Bondable 0.040% Daiwa GMACCM
g Fee Bondable 0.040% Daiwa GMACCM
h Fee Bondable 0.040% Daiwa GMACCM
i Fee Bondable 0.040% Daiwa GMACCM
j Fee Bondable 0.040% Daiwa GMACCM
k Fee Bondable 0.040% Daiwa GMACCM
56 Bondable
a Fee Bondable 0.040% Daiwa GMACCM
b Fee Bondable 0.040% Daiwa GMACCM
c Fee Bondable 0.040% Daiwa GMACCM
d Fee Bondable 0.040% Daiwa GMACCM
e Fee Bondable 0.040% Daiwa GMACCM
f Fee Bondable 0.040% Daiwa GMACCM
g Fee Bondable 0.040% Daiwa GMACCM
h Fee Bondable 0.040% Daiwa GMACCM
i Fee Bondable 0.040% Daiwa GMACCM
j Fee Bondable 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
k Northwestern Human Services, Inc. 9601 Hayden Street Philadelphia PA 19115
l Northwestern Human Services, Inc. 3890 Woodhaven Road Philadelphia PA 19154
m Northwestern Human Services, Inc. 5518 Pine Street Harrisburg PA 17109
n Northwestern Human Services, Inc. 15020 Worthington Road Philadelphia PA 19116
o Northwestern Human Services, Inc. 1043 North 67th Street Philadelphia PA 19151
p Northwestern Human Services, Inc. 8401 Rising Sun Ave. Philadelphia PA 19111
q Northwestern Human Services, Inc. Old Route 220 Rd. #2 Bedford Township PA 15522
r Northwestern Human Services, Inc. 906 Bethlehem Pike Springfield Township PA 19038
s Northwestern Human Services, Inc. 243 West Schoolhouse Lane Philadelphia PA 19144
t Northwestern Human Services, Inc. 503 Market Street Sunbury PA 17801
u Northwestern Human Services, Inc. 920-22 North 19th Street Philadelphia PA 19130
v Northwestern Human Services, Inc. 5542-44 Ridge Avenue Philadelphia PA 19128
w Northwestern Human Services, Inc. Route 3 Box 198a-2 Rockefeller Township PA 17801
x Northwestern Human Services, Inc. 314 E. Wister Street Philadelphia PA 19144
y Northwestern Human Services, Inc. 6100 Newtown Ave. Philadelphia PA 19111
z Northwestern Human Services, Inc. 1 Sutherland Road Montclair NJ 08817
aa Northwestern Human Services, Inc. 25 Burnt Tavern Road Millstone NJ 08510
bb Northwestern Human Services, Inc. 52 Beverly-Rancocas Road Willingboro NJ 08046
57 Northwestern Human Services, Inc. Coal Township Northumberland PA 17866
58 Office Depot, Inc. 7420-7444 Brook Park Rd. Brooklyn OH 44134
59 The Golub Corporation (Price
Chopper) 101 Dunning Rd. Wallkill NY 10940
60 The Golub Corporation (Price
Chopper) Lot 2, North Main St. St. Albans VT 05478
61 Q Clubs Inc. 9800 West Atlantic Blvd. Coral Springs FL 33071
62 Q Clubs Inc. 700 Pine Island Rd. Plantation FL 33324
64 Q Clubs Inc. 3600 Emporium Circle Mesquite TX 75150
65 Q Clubs Inc. 1375 East Campbell Rd. Richardson TX 75081
66 Q Clubs Inc. 4600 W. Park Blvd. Plano TX 75093
67 Q Clubs Inc. 7300 W. Greens Rd Willow Brook TX 77064
68 Rite Aid Corporation 1175 Second Street Brentwood CA 94513
69 Rite Aid Corporation 8585 Elk Grove Blvd. Elk Grove CA 95624
70 Rite Aid Corporation 1935 N Street Newman CA 95360
74 Rite Aid Corporation 1123 Donner Pass Road Truckee CA 96161
75 Rite Aid Corporation 1271 Main St. Watertown CT 6795
76 Rite Aid Corporation 2809 E. Cleveland Blvd. Caldwell ID 83605
77 Rite Aid Corporation 204 Park Ave. Carrolton KY 41008
78 Rite Aid Corporation 308 Parkway Dr. Salyersville KY 41465
79 Rite Aid Corporation 27050 John R. Road Madison Hgts. MI 48091
80 Rite Aid Corporation 416 Daniel Webster HWY Merrimack NH 03054
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
k 168,902.49 1,363.86 7.460% 112 Tenant Yes No - 07/05/2007
l 178,285.96 1,439.63 7.460% 112 Tenant Yes No - 07/05/2007
m 131,368.60 1,060.78 7.460% 112 Tenant Yes No - 07/05/2007
n 394,105.81 3,182.34 7.460% 112 Tenant Yes No - 07/05/2007
o 75,067.77 606.16 7.460% 112 Tenant Yes No - 07/05/2007
p 178,285.96 1,439.63 7.460% 112 Tenant Yes No - 07/05/2007
q 534,857.89 4,318.89 7.460% 112 Tenant Yes No - 07/05/2007
r 1,660,874.50 13,411.30 7.460% 112 Tenant Yes No - 07/05/2007
s 487,940.53 3,940.04 7.460% 112 Tenant Yes No - 07/05/2007
t 225,203.32 1,818.48 7.460% 112 Tenant Yes No - 07/05/2007
u 234,586.79 1,894.25 7.460% 112 Tenant Yes No - 07/05/2007
v 450,406.64 3,636.96 7.460% 112 Tenant Yes No - 07/05/2007
w 112,601.66 909.24 7.460% 112 Tenant Yes No - 07/05/2007
x 722,527.33 5,834.29 7.460% 112 Tenant Yes No - 07/05/2007
y 84,451.25 681.93 7.460% 112 Tenant Yes No - 07/05/2007
z 365,955.40 2,955.03 7.460% 112 Tenant Yes No - 07/05/2007
aa 319,038.04 2,576.18 7.460% 112 Tenant Yes No - 07/05/2007
bb 581,775.25 4,697.74 7.460% 112 Tenant Yes No - 07/05/2007
57 14,135,554.35 109,041.52 7.140% 135 Tenant Yes Yes 5/31/1999 06/05/2009
58 4,488,420.74 34,768.82 8.818% 229 No Yes No - 04/01/2017
59 5,544,666.27 39,120.92 7.571% 282 No Yes No - 09/01/2021
60 6,067,932.30 43,956.25 7.950% 295 No Yes No - 10/01/2022
61 8,476,307.61 73,864.51 8.760% 250 No Yes No - 01/10/2019
62 8,217,471.25 71,608.95 8.760% 250 No Yes No - 01/10/2019
64 6,546,935.03 57,051.51 8.760% 250 No Yes No - 01/10/2019
65 7,017,113.02 61,148.75 8.760% 250 No Yes No - 01/10/2019
66 7,588,356.71 66,126.70 8.760% 250 No Yes No - 01/10/2019
67 5,841,894.12 50,907.62 8.760% 250 No Yes No - 01/10/2019
68 4,669,039.90 32,352.06 6.739% 261 Insured Yes No - 12/10/2019
69 4,072,992.28 28,222.01 6.739% 261 Insured Yes No - 12/10/2019
70 3,278,262.61 22,715.28 6.739% 261 Insured Yes No - 12/10/2019
74 3,377,603.64 23,403.62 6.739% 261 Insured Yes No - 12/10/2019
75 2,880,897.05 19,961.91 6.739% 261 Insured Yes No - 12/10/2019
76 3,973,651.25 27,533.67 6.739% 261 Insured Yes No - 12/10/2019
77 2,284,849.43 15,831.86 6.739% 261 Insured Yes No - 12/10/2019
78 2,066,298.88 14,317.51 6.739% 261 Insured Yes No - 12/10/2019
79 2,831,226.53 19,617.74 6.739% 261 Insured Yes No - 12/10/2019
80 2,036,495.42 14,111.00 6.739% 261 Insured Yes No - 12/10/2019
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL FEE/ LEASE INTEREST RESEREVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
k Fee Bondable 0.040% Daiwa GMACCM
l Fee Bondable 0.040% Daiwa GMACCM
m Fee Bondable 0.040% Daiwa GMACCM
n Fee Bondable 0.040% Daiwa GMACCM
o Fee Bondable 0.040% Daiwa GMACCM
p Fee Bondable 0.040% Daiwa GMACCM
q Fee Bondable 0.040% Daiwa GMACCM
r Fee Bondable 0.040% Daiwa GMACCM
s Fee Bondable 0.040% Daiwa GMACCM
t Fee Bondable 0.040% Daiwa GMACCM
u Fee Bondable 0.040% Daiwa GMACCM
v Fee Bondable 0.040% Daiwa GMACCM
w Fee Bondable 0.040% Daiwa GMACCM
x Fee Bondable 0.040% Daiwa GMACCM
y Fee Bondable 0.040% Daiwa GMACCM
z Fee Bondable 0.040% Daiwa GMACCM
aa Fee Bondable 0.040% Daiwa GMACCM
bb Fee Bondable 0.040% Daiwa GMACCM
57 Fee Bondable $1,266,198.16 0.040% Daiwa GMACCM
58 Fee Double Net $12,395.45 0.040% Daiwa GMACCM
59 Fee Bondable 0.040% Daiwa GMACCM
60 Fee Triple Net $44,767.89 0.040% Daiwa GMACCM
61 Fee Bondable 0.040% Daiwa GMACCM
62 Fee Bondable 0.040% Daiwa GMACCM
64 Fee Bondable 0.040% Daiwa GMACCM
65 Fee Bondable 0.040% Daiwa GMACCM
66 Fee Bondable 0.040% Daiwa GMACCM
67 Fee Bondable 0.040% Daiwa GMACCM
68 Fee Bondable 0.040% Daiwa GMACCM
69 Fee Bondable 0.040% Daiwa GMACCM
70 Fee Bondable 0.040% Daiwa GMACCM
74 Fee Bondable 0.040% Daiwa GMACCM
75 Fee Bondable 0.040% Daiwa GMACCM
76 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
77 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
78 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
79 Fee Bondable 0.040% Daiwa GMACCM
80 Fee Bondable 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL
NUMBER TENANT/GUARANTOR (IF APPLICABLE) ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
81 Rite Aid Corporation 86 Elm St. Milford NH 03055
82 Rite Aid Corporation 160 Washington Ave. Carteret NJ 07008
83 Rite Aid Corporation 8530 W. Lake Mead Blvd. Las Vegas NV 89128
84 Rite Aid Corporation 400 Suffolk Ave. Brentwood NY 11717
85 Rite Aid Corporation 2532-54 86th St. Brooklyn NY 11214
86 Rite Aid Corporation Rt 9 W & Cauterskill Catskill NY 12414
87 Rite Aid Corporation SEC Rt 9 & 11 Champlain NY 12919
88 Rite Aid Corporation 2 Central Ave. Ravena NY 12143
89 Rite Aid Corporation E. 71st & Harvard Cleveland OH 44105
90 Rite Aid Corporation Salem & Grand Ave. Dayton OH 45406
91 Rite Aid Corporation 34321 Center Ridge Road N. Ridgeville OH 44039
92 Rite Aid Corporation 27299 Chagrin Boulevard Woodmere OH 44122
93 Rite Aid Corporation 90 "B" Avenue Lake Oswego OR 97034
94 Rite Aid Corporation 435 Liberty St, N.E. Salem OR 97301
95 Rite Aid Corporation 5100 Library Road Bethel Park PA 15102
96 Rite Aid Corporation 5400 Rising Sun Avenue Philadelphia PA 19120
97 Rite Aid Corporation 507 W. Elk Ave. Elizbethton TN 37643
98 Rite Aid Corporation 3460 S. 5600 West West Valley UT 84120
99 Rite Aid Corporation 2917 Brandon Ave, S.W. Roanoke VA 24015
100 Rite Aid Corporation 1500 W Beverly St. Staunton VA 24401
101 Rite Aid Corporation 1660 Independence Blvd. Virginia Beach VA 23455
102 Rite Aid Corporation 9 Susie Wilson Rd. Essex Junction VT 05451
103 Rite Aid Corporation US Rt 7 Middlebury VT 05753
104 Rite Aid Corporation 700 S. Main Street Ellensburg WA 98926
105 Rite Aid Corporation 1630 Grand Ave. Pullman WA 99163
106 Rite Aid Corporation 5606 Summitview Ave. Yakima WA 98908
107 Rite Aid Corporation 3175 W. DuPont Ave Belle WV 25015
108 Rite Aid Corporation 4580 Liberty Ave. Vermilion OH 44089
109 Rite Aid Corporation 939 US 31 South Traverse City MI 49684
110 Rite Aid Corporation 5 Saco Ave. Old Orchard Beach ME 04064
111 Rite Aid Corporation 10-20 West Main Street Landsdale PA 19446
112 Rite Aid Corporation 1936 Van Vranken Ave. Schenectady NY 12308
113 Time Warner Entertainment, L.P. US Highway 92 Auburndale FL 33610
</TABLE>
- ----------
(1) Control Numbers 1, 2, and 3 are quarterly-pay loans.
(2) The date upon which construction is scheduled to be completed pursuant to
the terms of the Credit Lease and related documents.
(3) Servicing Fees include Primary and Master Servicing.
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE MONTHLY GROSS REM CONSTRUCTION MATURITY
NUMBER BALANCE PAYMENT (1) RATE TERM BALLOON DEFEASANCE CONSTRUCTION COMPLETION (2) DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
81 2,334,519.95 16,176.03 6.739% 261 Insured Yes No - 12/10/2019
82 4,271,674.34 29,598.69 6.739% 261 Insured Yes No - 12/10/2019
83 4,967,062.98 34,417.08 6.739% 261 Insured Yes No - 12/10/2019
84 3,576,285.69 24,780.30 6.739% 261 Insured Yes No - 12/10/2019
85 3,079,579.11 21,338.59 6.739% 261 Insured Yes No - 12/10/2019
86 2,433,860.98 16,864.37 6.739% 261 Insured Yes No - 12/10/2019
87 1,887,483.88 13,078.49 6.739% 261 Insured Yes No - 12/10/2019
88 2,086,167.38 14,455.18 6.739% 261 Insured Yes No - 12/10/2019
89 2,607,708.50 18,068.97 6.739% 261 Insured Yes No - 12/10/2019
90 2,731,885.51 18,929.40 6.739% 261 Insured Yes No - 12/10/2019
91 2,607,708.50 18,068.97 6.739% 261 Insured Yes No - 12/10/2019
92 3,029,908.59 20,994.42 6.739% 261 Insured Yes No - 12/10/2019
93 2,384,190.46 16,520.20 6.739% 261 Insured Yes No - 12/10/2019
94 6,059,817.18 41,988.84 6.739% 261 Insured Yes No - 12/10/2019
95 2,627,576.99 18,206.64 6.739% 261 Insured Yes No - 12/10/2019
96 2,548,103.02 17,655.96 6.739% 261 Insured Yes No - 12/10/2019
97 1,927,220.86 13,353.83 6.739% 261 Insured Yes No - 12/10/2019
98 3,377,603.64 23,403.62 6.739% 261 Insured Yes No - 12/10/2019
99 2,582,872.52 17,896.88 6.739% 261 Insured Yes No - 12/10/2019
100 2,384,190.46 16,520.20 6.739% 261 Insured Yes No - 12/10/2019
101 2,880,897.05 19,961.91 6.739% 261 Insured Yes No - 12/10/2019
102 1,907,352.37 13,216.16 6.739% 261 Insured Yes No - 12/10/2019
103 1,639,131.30 11,357.64 6.739% 261 Insured Yes No - 12/10/2019
104 3,377,603.64 23,403.62 6.739% 261 Insured Yes No - 12/10/2019
105 2,582,872.52 17,896.88 6.739% 261 Insured Yes No - 12/10/2019
106 4,172,333.31 28,910.35 6.739% 261 Insured Yes No - 12/10/2019
107 1,241,765.75 8,604.27 6.739% 261 Insured Yes No - 12/10/2019
108 1,689,673.43 12,779.46 7.050% 256 No Yes No - 07/10/2019
109 1,575,114.51 12,880.08 7.253% 223 No No No - 10/10/2016
110 1,826,132.74 15,271.75 7.620% 225 No Yes No - 12/01/2016
111 2,688,537.94 19,803.55 7.670% 238 No Yes No - 01/01/2018
112 1,681,245.78 13,476.46 7.740% 254 No Yes No - 05/10/2019
113 3,055,623.03 28,169.58 7.360% 180 No Yes Yes 4/1/1998 03/10/2013
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CTL MORTGAGE LOAN SCHEDULE
CONTROL FEE/ LEASE INTEREST RESERVE ESCROW INTEREST SERVICING LOAN
NUMBER LEASEHOLD TYPE DEPOSIT DEPOSITS RESERVE FEES (3) SELLER SUBSERVICER
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
81 Fee Bondable 0.040% Daiwa GMACCM
82 Fee Bondable 0.040% Daiwa GMACCM
83 Fee Bondable 0.040% Daiwa GMACCM
84 Fee Bondable 0.040% Daiwa GMACCM
85 Fee Bondable 0.040% Daiwa GMACCM
86 Fee Bondable 0.040% Daiwa GMACCM
87 Fee Bondable 0.040% Daiwa GMACCM
88 Fee Bondable 0.040% Daiwa GMACCM
89 Fee Bondable 0.040% Daiwa GMACCM
90 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
91 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
92 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
93 Fee Bondable 0.040% Daiwa GMACCM
94 Fee Bondable 0.040% Daiwa GMACCM
95 Fee Bondable 0.040% Daiwa GMACCM
96 Fee Bondable 0.040% Daiwa GMACCM
97 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
98 Fee Bondable 0.040% Daiwa GMACCM
99 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
100 Fee & Leasehold Bondable 0.040% Daiwa GMACCM
101 Fee Bondable 0.040% Daiwa GMACCM
102 Fee Bondable 0.040% Daiwa GMACCM
103 Fee Bondable 0.040% Daiwa GMACCM
104 Fee Bondable 0.040% Daiwa GMACCM
105 Fee Bondable 0.040% Daiwa GMACCM
106 Fee Bondable 0.040% Daiwa GMACCM
107 Fee Bondable 0.040% Daiwa GMACCM
108 Fee Bondable 0.040% Daiwa GMACCM
109 Fee Double Net $2,236.28 0.040% Daiwa GMACCM
110 Fee Double Net $2,580.20 0.040% Daiwa GMACCM
111 Fee Triple Net 0.040% Daiwa GMACCM
112 Fee Bondable 0.040% Daiwa GMACCM
113 Fee Bondable $19,061.91 0.040% Daiwa GMACCM
</TABLE>
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF AN OFFICER OF
DAIWA FINANCE CORP.
I, ______________________, hereby certify that I am an authorized signatory
of Daiwa Finance Corp., a New York corporation (the "Seller"), and that, based
upon information provided to me by appropriate officers, certify further as
follows, to the best of my knowledge:
1. The representations and warranties of the Seller in the Mortgage
Loan Purchase Agreement, dated as of March 1, 1998 (the "MLPA") 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.
2. The Seller has, in all material aspects, complied with all the
agreements and satisfied all the conditions on its part that are required
under the MLPA to be performed or satisfied at or prior to the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1998.
DAIWA FINANCE CORP.
By: __________________________________
Name:
Title:
I, ______________________, a ________________ of the Seller, hereby certify
that ______________________ is an authorized signatory of the Seller and that
the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1998.
By: __________________________________
Name:
Title:
B-1
<PAGE>
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a New York corporation duly organized,
validly existing and in good standing under the laws of the State of New York,
with full corporate power and authority to own its assets and conduct its
business as presently conducted by it, to own the Mortgage Loans, and enter into
and perform its obligations under the Mortgage Loan Purchase Agreement.
2. The Mortgage Loan Purchase Agreement has been duly authorized, executed
and delivered by the Mortgage Loan Seller and constitutes the legal, valid and
binding obligations of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms of the Mortgage Loan Purchase
Agreement, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except to the extent rights to indemnity and contribution may be limited by
applicable law.
3. The execution and delivery of the Mortgage Loan Purchase Agreement by
the Mortgage Loan Seller and the performance of its obligations under the
Mortgage Loan Purchase Agreement will not conflict with any provision of any
federal or State of New York law or regulation to which the Mortgage Loan Seller
is subject, or conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any of the Mortgage Loan
Seller's organizational documents, or, to our knowledge, any agreement or
instrument to which the Mortgage Loan Seller is a party or by which it is bound,
or any order of a federal or State of New York court, regulatory body,
administrative agency or government body having jurisdiction over the Mortgage
Loan Seller.
4. There is no action, suit, proceeding or investigation pending or
threatened, against the Mortgage Loan Seller in any court or by or before any
other governmental agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by this
Agreement.
5. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan
Seller with the Mortgage Loan Purchase Agreement or the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, other than
those which have been obtained by the Mortgage Loan Seller.
C-1
<PAGE>
MERRILL LYNCH MORTGAGE INVESTORS, INC. 1998-C1-CTL
SCHEDULE I
(i) Immediately prior to the sale, transfer and assignment of the Mortgage
Loans to the Company, the Mortgage Loan Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan;
(ii) The Mortgage Loan Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, and none of the Mortgage Note, the Mortgage or
any other related loan document prohibits such transfer;
(iii) Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed in connection with such Mortgage Loan is, a valid
and binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and any lost note affidavit included in the Mortgage File in lieu of
a Mortgage Note does not impair the ability of the holder thereof to enforce the
terms of such Mortgage Note;
(iv) Each related Assignment of Leases, or, if none, the assignment of
leases and rents contained in the related Mortgage creates a valid, collateral
or first priority assignment of, or a valid first priority security interest in,
and, except for Mortgage Loan control number 21, 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, 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;
(v) Each related assignment of Mortgage from the Mortgage Loan Seller to
the Trustee and any related assignment of Assignment of Leases, if any, and
assignment of any other agreement executed in connection with such Mortgage
Loan, from the Mortgage Loan Seller to the Trustee constitutes the legal, valid
and binding assignment from the Mortgage Loan Seller to the Trustee, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating to or affecting
creditors' rights generally or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
<PAGE>
(vi) Since origination, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded, except, in each of the foregoing
instances, by written instruments that are a part of the related Mortgage File,
and, if required, 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 Company, and no material portion of the
related Mortgaged Property has been released from the lien of the related
Mortgage, in each case, in any manner which materially and adversely affects the
value of the Mortgage Loan or materially interferes with the security intended
to be provided by such Mortgage, and none of the related Mortgages contain terms
which provide for release of any portion of the Mortgaged Property from the lien
of the Mortgage in any manner which materially and adversely affects the
security provided by the Mortgaged Property;
(vii) Each related Mortgage is a valid first lien on the related Mortgaged
Property (subject to the matters described in clause (viii) below), and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are insured against by a lender's title insurance policy (as described in
clause (viii) below);
(viii) The lien of each related Mortgage as a first priority lien in the
outstanding principal amount of such Mortgage Loan (as set forth on the Mortgage
Loan Schedule) after all advances of principal is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Mortgage Loan Seller, its
successors and assigns, subject only to (a) the lien of current real property
taxes, ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property, and (c) the exclusions and
exceptions (general and specific) set forth in such policy, all of which are
generally acceptable to reasonably prudent mortgage lenders; the original holder
of the Mortgage, and/or its successor or assigns, are the sole named insureds
under such policy; such policy is assignable to the Company and the Trustee
without the consent of or any notification to the insurer, and is now in full
force and effect and will remain so upon the consummation of the transactions
contemplated by this Agreement; no claims have been made under such policy, and
the Mortgage Loan Seller has not done anything, by act or omission, and the
Mortgage Loan Seller has no knowledge of any matter, which would impair or
diminish the coverage of such policy;
-2-
<PAGE>
(ix) The proceeds of such Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder and the Mortgage Loan Seller
covenants that it will not make any future advances under the Mortgage Loan to
the related Mortgagor;
(x) The Mortgage Loan Seller has received no notice of any proceeding
pending, nor to the Mortgage Loan Seller's knowledge, is any proceeding
threatened, for the total or partial condemnation of all or any material portion
of such Mortgaged Property, and, to the Mortgage Loan Seller's knowledge, each
related Mortgaged Property is free and clear of any material damage that would
affect materially and adversely the value of such Mortgaged Property as security
for the Mortgage Loan.
(xi) Except as indicated on Exhibit I-XI(A) attached hereto, the related
Mortgagor has represented to the Mortgagee or the Tenant under the related
Credit Lease has covenanted that, as of the date of origination of such Mortgage
Loan, and, to the Mortgage Loan Seller's knowledge, such Mortgagor and the
lessee and/or operator of the related Mortgaged Property was in possession of
all material licenses, permits and other authorizations necessary and required
by all applicable laws for the conduct of its business and all such licenses,
permits and authorizations were valid and in full force and effect, with the
exception of Mortgage Loans listed in Exhibit I-XI(B), which are Construction
Loans for which all material licenses, permits and other authorizations may not
be issued or available until the completion of construction but for which the
related Mortgagor is required to procure pursuant to the terms of the Mortgage
Loan or the Tenant is required to procure pursuant to the terms of the related
Credit Lease;
(xii) The Mortgage Loan does not have a shared appreciation feature, other
contingent interest feature or provide for hyper-amortization, a negative
amortization feature, or any negative amortization which is continuing as of or
arises after the Cut-Off Date;
(xiii) The Mortgage Loan is a whole loan and no other party holds a
participation interest in such Mortgage Loan;
(xiv) The Mortgage Rate (exclusive of any default interest, late charges,
prepayment premiums or defeasance deposits) of each Mortgage Loan complied as of
the date of origination with, or such Mortgage Loan is exempt from, applicable
state or federal laws, regulations and other requirements pertaining to usury;
any and all other requirements of any federal, state or local laws, including,
without limitation, truth-in-lending, real estate settlement procedures, equal
credit opportunity or disclosure laws, applicable to each Mortgage Loan have
been complied with as of the date of origination of such Mortgage Loan;
-3-
<PAGE>
(xv) All taxes and governmental assessments which would be a lien on the
Property and that prior to the Cut-Off Date became due and owing in respect of
each related Mortgaged Property have been paid, or an escrow of funds in an
amount sufficient to cover such payments has been established or the Tenant
under the Credit Lease is required to pay all such taxes, assessments or other
charges;
(xvi) All escrow deposits (other than escrow reserves for funding
construction) and payments required pursuant to the Mortgage Loan are in the
possession, or under the control, of the Mortgage Loan Seller or its agent and
all amounts required to be deposited by the Borrower under the Loan Documents as
of the date hereof have been deposited and all such escrows and deposits have
been conveyed by the Mortgage Loan Seller to the Company and identified as such
with appropriate detail;
(xvii) As of the date of its origination, each related Mortgaged Property
is insured by a fire and extended perils insurance policy in an amount not less
than the lesser of (A) the outstanding principal balance of the Mortgage Loan
and (B) the replacement cost of the related Mortgaged Property, and in all
events the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; with respect to each related
Mortgaged Property, in the event a Tenant may, pursuant to the terms of the
Credit Lease, offset rent in the event of any casualty, the Mortgagor shall
maintain business interruption insurance (or loss of rents insurance) and
comprehensive general liability insurance in amounts generally required by
institutional lenders for similar properties; all premiums on such insurance
policies required to be paid as of the date hereof have been paid; such
insurance policies require prior notice to the insured and to the Mortgagee of
termination or cancellation, and no such notice has been received; each related
Mortgage or loan agreement obligates the related Mortgagor to maintain a fire
and extended perils insurance and, at such Mortgagor's failure to do so,
authorizes the Mortgagee to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from such Mortgagor, provided,
however, the obligation of the Mortgagor pursuant to the Mortgage or loan
agreement to maintain such insurances is waived so long as the Tenant under the
related Credit Lease is complying with such requirements through a program of
Tenant self-insurance;
(xviii) Each Mortgage provides that any insurance proceeds in respect of a
casualty, other than business interruption/rental income insurance, and any
condemnation awards (or condemnation proceeds) or insurance proceeds, will be
applied either to the repair or restoration of the Mortgaged Property or to the
repayment of the outstanding principal balance of the Mortgage Loan, except in
the instance of any claims paid pursuant to any special risk
casualty/condemnation insurance policies under which the lender is the named
insured (as opposed to merely
-4-
<PAGE>
loss payee), in which case such proceeds may be applied at the discretion of the
holder of the related Mortgage Note;
(xix) (A) To the Mortgage Loan Seller's knowledge, there is no material
default, breach, violation or event of acceleration existing under the related
Mortgage or the related Mortgage Note, and no event (other than payments due but
not yet delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material default,
breach, violation or event of acceleration, and (B) the Mortgage Loan Seller has
not waived in writing 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;
(xx) No Monthly Payment on such Mortgage Loan has been more than 30 days
delinquent from the later of one year prior to the Cut-off Date, the date of
origination of such Mortgage Loan or, if applicable, the date of acquisition by
the Mortgage Loan Seller of such Mortgage Loan, through the Cut-off Date;
(xxi) Each related Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy or other law affecting the right of
creditors generally and the application of principles of equity, and there is no
exemption available to the Mortgagor which would interfere with such right to
foreclose;
(xxii) Except as indicated on Exhibit I-XXII attached hereto, one or more
environmental site assessments were performed by an environmental consulting
firm independent of the Mortgage Loan Seller and the Mortgage Loan Seller's
affiliates with respect to related Mortgaged Property during the 14 months prior
to the origination date and the Mortgage Loan Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessments referred to herein, has no knowledge of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property that
was not disclosed in such report(s); in each case where the report disclosed a
condition, either (a) the recommended action has been taken, including
implementation of an O&M agreement, (b) funds sufficient to pay for such
recommended action have been escrowed, or (c) the Tenant under a Credit Lease
Loan has the obligation to remedy such condition;
(xxiii) Each related Mortgage, Mortgage Note or loan agreement contains
provisions for the acceleration of the
-5-
<PAGE>
payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage or loan agreement, as
applicable, the related Mortgaged Property, or any controlling interest therein,
is directly or indirectly transferred or sold or is encumbered in connection
with subordinate financing (other than any existing subordinate debt);
(xxiv) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"). For this purpose, Section 860G(a)(3) of the Code shall be applied
without regard to the rule contained in Treasury Regulations Section
1.860G-2(f)(2) which treats a defective mortgage loan as a "qualified mortgage"
under certain circumstances. Accordingly, the Mortgage Loan Seller represents
and warrants that each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to acquire,
improve or protect the portion of such commercial or multifamily residential
property that consists of an interest in real property and such interest in real
property was the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (2) the fair market value of the interest in real property
which secures such Mortgage Loan was at least equal to 80% of the principal
amount of the Mortgage Loan (a) as of the Testing Date, or (b) as of the Closing
Date. For purposes of the previous sentence, (1) the fair market value of the
referenced interest in real property shall first be reduced by (a) the amount of
any lien on such interest in real property that is senior to the Mortgage Loan,
and (b) a proportionate amount of any lien on such interest in real property
that is on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a) such
Mortgage Loan was modified after the date of its origination in a manner that
would cause a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.1001-3(b), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in default or
when default with respect to such Mortgage Loan was reasonably foreseeable.
However, if the referenced Mortgage Loan has been subjected to a "significant
modification" after the date of its origination and at a time when such Mortgage
Loan was not in default or when default with respect to such Mortgage Loan was
not reasonably foreseeable, the Testing Date shall be the date upon which the
latest such "significant modification" occurred;
(xxv) As of the Cut-off Date the Mortgage Loan Schedule is true and correct
in all material respects;
(xxvi) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulations Section 1.860G-1(b)(2);
-6-
<PAGE>
(xxvii) The Mortgage File contains an appraisal of the related Mortgaged
Property, which appraisal is signed by a qualified appraiser who, to the
Mortgage Loan Seller's knowledge, had no interest, direct or indirect, in the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Title XI
of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(xxviii) None of the material improvements which were included for the
purposes 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 such property (except Mortgaged Properties
which are legal non-conforming uses and/or except for immaterial encroachments
or where the same is covered by a title insurance endorsement or affirmative
title insurance coverage), and no improvements on adjoining properties
materially encroach upon such Mortgaged Property, or the requisite title
insurance has been obtained with respect to the foregoing;
(xxix) The related Mortgagor has covenanted in the Mortgage Loan documents
or the related Tenant has covenanted in the related Credit Lease to maintain the
related Mortgaged Property in compliance with all applicable laws, zoning,
ordinances rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by prudent institutional
commercial mortgage lenders or lenders on credit leased properties with respect
to the foregoing matters; the Mortgage Loan Seller has received no notice of any
material violation of any applicable laws, zoning ordinances, rules, covenants
or restrictions affecting the construction, occupancy, use or operation of such
Mortgaged Property;
(xxx) With respect to each Mortgage Loan, the related Mortgagor is an
entity which has represented and covenanted in connection with the origination
of the Mortgage Loan, or whose organizational documents provide, that so long as
the Mortgage Loan is outstanding it will be a single-purpose entity. For this
purpose, "single-purpose entity" shall mean a person, other than an individual,
which does not engage in any business unrelated to the related Mortgaged
Property (which may include multiple Mortgaged Properties owned by the same
Borrower and securing only Mortgage Loans conveyed hereunder as listed on
Exhibit I-XXX) and its (or their) financing, does not have any material assets
other than those related to its interest in such Mortgaged Property (or
Mortgaged Properties) or its (or their) financing, or any indebtedness other
than as permitted by the
-7-
<PAGE>
related Mortgage or the other documents in the Mortgage Loan File, and such
Mortgagor has covenanted under the Mortgage that it will maintain its own books
and records separate and apart from any other person, and holds itself out as
being a legal entity, separate and apart from any other person;
(xxxi) The Mortgage Loan complied, in all material respects, with all of
the terms, conditions and requirements of the Mortgage Loan Seller's applicable
underwriting standards in effect at the time of the origination or acquisition
of such Mortgage Loan;
(xxxii) The Mortgage Loan Seller has no knowledge nor has it received any
notice that any Mortgagor is a debtor in any state or federal bankruptcy or
insolvency proceeding;
(xxxiii) To the best of Mortgage Loan Seller's knowledge, as of the Closing
Date, there is no right of rescission, offset, abatement, diminution, defense or
counterclaim to the Mortgage Loan (including the defense of usury), nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any rights thereunder, render the Mortgage Note or the Mortgage
unenforceable, in whole or in part (excluding provisions relating to default
interest, yield maintenance charges, prepayment premiums or defeasance
deposits), or subject to any right of rescission, offset, abatement, diminution,
valid defense or counterclaim (including the defense of usury or the violation
of any applicable disclosure or consumer credit laws), except in any such case
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights
generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and no such
right of rescission, offset, abatement, diminution, defense or counterclaim has
been asserted with respect thereto;
(xxxiv) In the case of any Mortgage which is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law, and no fees or expenses are, or
will become, payable to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor or in connection
with the release of the Mortgaged Property or related security for the Mortgage
Loan following the payment of the Mortgage Loan in full;
(xxxv) The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the Mortgagor or
Tenant is required to maintain or the Mortgagee maintains, flood insurance with
respect to such improvements or the Tenant under the related Credit Lease
-8-
<PAGE>
has no right to abate, offset rent, or terminate such Credit Lease in the event
of flood;
(xxxvi) If the Mortgaged Property is subject to any leases, the Mortgagor
is the owner and holder of the landlord's interest under any leases and the
related Mortgage or Assignment of Leases provides for the appointment of a
receiver for rents (in accordance with applicable law) or allows the Mortgagee
(in accordance with applicable law) to enter into possession to collect rent or
provides for rents to be paid directly to Mortgagee;
(xxxvii) The Mortgage Note is not secured by any collateral that is not
being transferred hereunder;
(xxxviii) Each Mortgage Loan, if any, that is cross-collateralized is
cross-collateralized only with one or more other Mortgage Loans being
transferred hereunder;
(xxxix) The origination (or acquisition, as the case may be), servicing and
collection practices used with respect to the Mortgage Loan by the Mortgage Loan
Seller and, to the Mortgage Loan Seller's knowledge, by any prior holder of the
Mortgage Loan, have been in all respects legal, proper and prudent in all
material respects and have met customary industry standards;
(xl) Except as indicated on Exhibit I-XI, no advance of funds has been made
other than pursuant to the loan documents, directly or indirectly, by the
Mortgage Loan Seller to the Mortgagor and, to the Mortgage Loan Seller's
knowledge, no funds have been received from any person other than the Mortgagor,
for or on account of payments due on the Mortgage Note or the Mortgage
,provided, however, Rental Payments or similar payments made by the Tenant under
the related Credit Lease directly to the Mortgage Loan Seller (or its loan
servicer or agent) shall not be deemed a breach of this representation;
(xli) UCC Financing Statements have been filed and/or recorded in all
places necessary to perfect a valid security interest in all material furniture,
fixtures and equipment owned by a Mortgagor and located on each Mortgaged
Property and for which perfection is accomplished by the filing of a UCC
financing statement, and the mortgages, security agreements, chattel mortgages
or equivalent documents related to and delivered in connection with the related
Mortgage Loans establish and create a valid and enforceable first lien and first
priority security interest on such material furniture, fixtures and equipment
except as enforceability may be limited by bankruptcy or other laws affecting
creditor's rights generally or by the application of the rules of equity;
-9-
<PAGE>
(xlii) To the Mortgage Loan Seller's knowledge, the Mortgagor has no
indebtedness for borrowed money secured by a mortgage encumbering the Mortgaged
Property other than the Mortgage Loan. Each Mortgage provides that the Mortgagor
may not incur additional debt secured by the Mortgaged Property without (A) the
Mortgagee's prior written consent, or (B) written confirmation from each Rating
Agency that such additional debt will not result in a withdrawal or downgrade of
any ratings assigned to the Certificates;
(xliii) Based on information obtained from the related Mortgagor at the
time of origination, a list of borrowers or groups of affiliated borrowers with
multiple Mortgage Loans is attached hereto as Exhibit I-XLIII(A) and, 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 the amount set forth in Exhibit I-XLIII(B) attached hereto;
(xliv) The Mortgage Loan has an interest rate of at least 6.570% per annum;
(xlv) The Mortgage Loan is non-recourse to the related Mortgagor (or its
principals) except for certain circumstances including fraud, misappropriation,
material misrepresentation and other matters expressly set forth in the related
Mortgage Loan documents;
(xlvi) The Mortgage Loan Seller (or Mortgage Loan originator) has inspected
or caused to be inspected each related Mortgage Property within twelve months of
origination;
(xlvii) Except as set forth in Schedule II, the Mortgage Loan is not
secured in whole or in part by a ground lease; and
(xlviii) To the Seller's actual knowledge, there are no pending actions,
suits or proceedings by or before any court or governmental authority against or
affecting the related Mortgagor or Mortgaged Property that, if determined
adversely to such Mortgagor, would materially and adversely affect the ability
of the Mortgagor to pay principal, interest or any other amount due under such
Mortgage Loan.
-10-
<PAGE>
SCHEDULE II
For each Mortgage Loan identified on the Mortgage Loan Schedule as a ground
lease, the Mortgage Loan Seller hereby represents and warrants:
(A)(i) the Mortgage Loan is also secured by the related fee interest
or (ii) the ground lease represents a non-essential portion of the
Mortgaged Property, and the ground lease has an original term (or an
original term plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by the Mortgagor,
or the Mortgagee if the Mortgagee acquires the related Mortgaged Property
upon foreclosure, assignment-in-lieu of foreclosure or otherwise) that
extends not less than 10 years beyond the stated maturity of the related
Mortgage Loan, or
(B) if the Mortgage Loan is secured by a Mortgage constituting a valid
first lien on an unencumbered interest of the Borrower as lessee under a
ground lease underlying the related Mortgaged Property, then the Mortgage
Loan Seller represents and warrants the following:
(i) The ground lease (which shall mean such ground lease, all
amendments and modifications thereof and any related estoppels or
agreements from ground lessor) or a memorandum regarding it has been
duly recorded. The ground lease permits the interest of the lessee to
be encumbered by the related Mortgage and does not restrict the use of
the related Mortgaged Property by such lessee, its successors or
assigns in a manner that would adversely affect the security provided
by the related Mortgage. There has been no material change in the
terms of such ground lease since its recordation, except by written
instruments, all of which are included in the related Mortgage File;
(ii) The lessor under such ground lease has agreed in a writing
included in the related Mortgage File that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the Mortgagee and that any such action without such consent
is not binding on the Mortgagee, its successors or assigns, except if
an event of default occurs under the Ground Lease and notice is
provided to the Mortgagee and such default is curable by the
Mortgagee, but remains uncured beyond the applicable cure period;
(iii) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by the
Mortgagee) that extends not less than 10 years beyond the stated
maturity of the related Mortgage Loan;
(iv) The ground lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the
<PAGE>
Mortgage (including without limitation, the rights of any
fee-mortgage, if any) other than the related ground lessor's related
fee interest and any exceptions set forth in the related title
insurance policy or opinion of title;
(v) The ground lease is assignable to the Mortgagee and its
assigns without the consent of the lessor thereunder (or, if any such
consent is required, it has been obtained prior to the Closing Date);
(vi) As of the date of origination of the Mortgage Loan, and to
the Mortgage Loan Seller's knowledge as of the Cut-off Date, the
ground lease is in full force and effect and no default has occurred,
nor is there any existing condition which, but for the passage of time
or giving of notice, would result in a default under the terms of the
ground lease;
(vii) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by
the lessee to the Mortgagee. The ground lease or ancillary agreement
further provides that no notice given is effective against the
Mortgagee unless a copy has been given to the Mortgagee in a manner
described in the ground lease or ancillary agreement;
(viii) The Mortgagee is permitted a reasonable opportunity, which
may be concurrent and coterminous with the Mortgagor's rights
thereunder (including, where necessary, sufficient time to gain
possession of the interest of the lessee under the ground lease
through legal proceedings, or to take other action so long as the
Mortgagee is proceeding) to cure any default under the ground lease
which is curable after the receipt of notice of any default before the
lessor may terminate the ground lease;
(ix) The ground lease does not impose any restrictions on
subletting by the Mortgagee that would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
(x) The ground lease provides that any related insurance proceeds
or condemnation award (other than in respect of a total or
substantially total loss or taking) will be applied either to the
repair or restoration of all or part of the related Mortgaged
Property, with the Mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as repair or restoration
progresses, or, to the payment of the outstanding principal balance of
the Mortgage Loan, together with any accrued interest (except in cases
where a different allocation would not be viewed as commercially
unreasonable by any institutional investor, taking into account the
relative duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan);
-2-
<PAGE>
(xi) Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease will
have the option to terminate or modify the ground lease without prior
written consent of the Mortgagee as a result of any casualty or
partial condemnation, except to provide for an abatement of the rent;
(xii) Upon request, the ground lessor is required to enter into a
new lease upon termination of the Ground Lease for any reason, on
substantially similar terms and conditions as the old lease, including
upon the rejection of the lease in bankruptcy; and
(xiii) The ground lease does not provide for an increase in
rental payments during the term of the related Mortgage Loan except
for scheduled increases which are the responsibility of the related
Tenant under the Credit Lease.
-3-
<PAGE>
SCHEDULE III
(i) Except as indicated in Exhibit III-I attached hereto, the base lease
payments due under the related Credit Lease are equal to or greater than the
payments due with respect to the related Mortgage Loan, and, as to the Bondable
Leases, are payable without setoff, counterclaim, recoupment, abatement,
reduction or defense;
(ii) Except as indicated in Exhibit III-II, the Mortgagor does not have
monetary obligations under the related Credit Lease, and every monetary
obligation associated with managing, owning, developing and operating the leased
property, including, but not limited to, the costs associated with utilities,
taxes, insurance, maintenance, payments under ground leases, and repairs is an
obligation of the related Tenant, except for those repair or other items for
which the Mortgagee has required regular deposits into an escrow account
maintained by the Mortgagee or its designee;
(iii) Except as indicated in Exhibit III-III, the Mortgagor does not have
any material non-monetary obligations under the related Credit Lease, except for
the delivery of possession of the leased property;
(iv) The Mortgagor has not made any representation or warranty in the
related Credit Lease, a breach of which would result in the termination of, or
an offset or abatement with respect to, such Credit Lease;
(v) (A) Other than due to a default by the Mortgagor under a related Credit
Lease which is not a Bondable Lease, the Tenant cannot terminate such Credit
Lease for any reason other than in certain events of casualty or condemnation,
which events are insured under a Lease Enhancement Policy, and (B) in each case
where the term of the Credit Lease is shorter than the amortized Mortgage term,
the balloon amount of such related Mortgage Loan due at the scheduled maturity
thereof is insured by an RVI Policy;
(vi) In the event the related Tenant assigns or sublets the related leased
property, such Tenant (and if applicable, the related guarantor) remains
obligated under the related Credit Lease;
(vii) Each property related to a Credit Lease Loan is one or more separate
tax lots;
(viii) Except as indicated in Exhibit III-VIII, the related Tenant has
agreed to indemnify the Mortgagor from any claims of any nature (a) to which the
Mortgagor is subject because of such Mortgagor's estate in the leased property,
or (b) arising from (i) injury to or death of any person or damage to or loss of
property on the leased property or connected with the
<PAGE>
use, condition or occupancy of the leased property, (ii) Tenant's violation of
the related Credit Lease, or (iii) any act or omission of the Tenant;
(ix) Except as indicated in Exhibit III-IX, the related Tenant has agreed
to indemnify the Mortgagor from any claims of any nature arising as a result of
any hazardous material affecting the leased property and due to such Tenant's
use of the leased property;
(x) In connection with Credit Lease Loans with respect to which a lease
guarantee exists, the related guarantor (which is the rated entity affiliated
with the Tenant) guarantees the payment due under the related Credit Lease and
such guarantee, on its face, contains no conditions to such payment, other than
a notice and right to cure; the lease guarantee is the legal, valid and binding
obligation of the related guarantor, and the lease guarantee is assignable
together with the Credit Lease without further consent of the related guarantor;
and the guaranty provides that it is the guaranty of both the performance and
payment of the financial obligations of the Tenant under the related Credit
Lease, and does not provide for offset, counterclaim or defense;
(xi) Each Credit Lease Loan which has a Balloon Payment due at maturity
which is not covered by a corresponding lease payment from the Tenant, has the
benefit of a residual value insurance policy, such policy has been obtained, and
with respect to the Credit Leases other than Bondable Leases, the required
premiums have been paid;
(xii) Each Credit Lease Loan which gives the Tenant a right to terminate
such Credit Lease in certain events of casualty or condemnation has been insured
pursuant to a special risk insurance policy (insuring lease termination in the
event of casualty, condemnation, or both, as may be applicable) and the required
premiums have been paid;
(xiii) The list of lease guarantors or Tenants of the related Credit Lease,
attached as Exhibit III-XIII hereto, is accurate in all material respects;
(xiv) Any obligation or liability imposed by any easement or reciprocal
easement agreement is an obligation of the Tenant and is without recourse or
liability to the Mortgagor;
(xv) Except for Double Net Leases and Triple Net Leases, and except for
those Bondable Leases which afford the related Tenant the right to terminate the
Credit Lease upon the occurrence of certain casualty and/or condemnation events
upon payment of an amount sufficient to defease the related Mortgage Loan, the
obligations of the Tenant under the related Credit Lease, including, but not
limited to, the obligation to pay fixed and additional rent, are not affected by
reason of any damage to
-2-
<PAGE>
or destruction of any portion of the leased property, any taking of the leased
property or any part thereof by condemnation or otherwise; or any prohibition,
limitation, interruption, cessation, restriction, prevention or interference of
the Tenant's use, occupancy or enjoyment of the leased property;
(xvi) Based on an Estoppel Letter from the Tenant as of the Mortgage Loan's
origination date, no default by the mortgagor or the Tenant has occurred under
the related Credit Lease and there is no existing condition which, but for the
passage of time or the giving of notice, or both would result in a default under
the terms of such Credit Lease;
(xvii) The Credit Lease is in full force and effect and is a legal, valid,
binding and enforceable agreement of the related Tenant;
(xviii) In the event that the Trustee acquires title to a Mortgaged
Property by foreclosure or otherwise, the Mortgagor's interest under the related
Credit Lease is freely assignable by the Trustee and its successors and assigns
to any person without the consent of the Tenant (but with notice), and in the
event the Mortgagor's interest is so assigned, the Tenant will be obligated to
recognize the assignee as Mortgagor under such Credit Lease;
(xix) Except as indicated in Exhibit III-XIX, the Tenant has delivered a
subordination, non-disturbance and attornment agreement, and an Estoppel Letter
with respect to the related Credit Lease; and
(xx) Except as indicated on Exhibit III-XX, the Tenant has agreed to notify
the Mortgagee of any default under the related Credit Lease and to provide the
Mortgagee with an opportunity to cure;
(xxi) The terms of the Credit Lease may not be modified in any material
respect including, without limitation, its economic terms, without the consent
of the mortgagee thereunder; and to the knowledge of the Mortgage Loan Seller,
no Tenant has been released, in whole or in part, from its obligations under its
Credit Lease;
(xxii) Except as indicated in Exhibit III-XXII, each Tenant is required to
make all rental payments directly to the Mortgagee; and
(xxiii) Except as indicated in Exhibit III-XXIII, no Mortgage Loan is
secured by a Mortgaged Property that is under construction or substantial
rehabilitation.
-3-
<PAGE>
EXHIBIT I-XI(A)
NONE
Page 1 of 22
<PAGE>
EXHIBIT I-XI(B)
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- -------- --------
<S> <C> <C> <C> <C>
3 Allegheny General Hospital Federal St./W.N. Ave Pittsburgh PA
4 Baptist Hospital, Inc. 2011 Murphy Nashville TN
53 County of Monroe, New York 50 West Main St. Rochester NY
57 Northwestern Human Svcs, Inc. Coal Township Northumberland PA
113 Time Warner Entertainment, L.P. US Highway 92 Auburndale FL
</TABLE>
Page 2 of 22
<PAGE>
EXHIBIT I-XVI
NONE
Page 3 of 22
<PAGE>
EXHIBIT I-XXII
NONE
Page 4 of 22
<PAGE>
EXHIBIT I-XXX
<TABLE>
<CAPTION>
FILE
CONTROL COMMON
NUMBERS TENANT NAME BORROWER
------- ----------- --------
<S> <C> <C>
11, 14 Circuit City Stores, Inc. WMI/MPI Business Trust & WML/MPL Business Trust
43, 44 Heilig-Meyers, Inc. WEC 97H - Washington-1
28, 29, 30 Heilig-Meyers, Inc. WEC 97H - Iowa-1
34, 35 Heilig-Meyers, Inc. WEC 97H - Illinois
32, 33 Heilig-Meyers, Inc. WEC 97H - Idaho
25, 26, 27 Heilig-Meyers, Inc. WEC 97H - California
38, 40 Heilig-Meyers, Inc. WEC 97H-Oregon-2
39, 41 Heilig-Meyers, Inc. WEC 97H-Oregon-1
55, 56 Northwestern Human Services, Inc. CRI Northwestern I Trust
76-78, 90, 91, 99, 100 Rite Aid Corporation Buffalo-BAL Business Trust & SDI Business Trust
</TABLE>
Page 5 of 22
<PAGE>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE AMOUNT
- ------- ----------- -------------- -------- -------- ------
109 Rite Aid Corporation 939 US 31 South Traverse City MI $2,096.25
The loan servicer inadvertently remitted the required monthly structural reserve
to the related borrower. The servicer has reimbursed this account out of its own
funds to cover this shortfall. The borrower has confirmed that it will reimburse
the servicer for these amounts, however, the servicer has agreed to take no
action in the event the borrower fails to reimburse all or any portion of such
amounts. This funding of the escrow account does not represent payment of sums
due from the borrower by a third party since the borrower caused such amounts to
be paid over the servicer and the servicer in turn remitted such amounts back to
the borrower.
Page 6 of 22
<PAGE>
XLIII(A)
<TABLE>
<CAPTION>
RELATED
CONTROL TENANT/ LEASE LOAN
NUMBER LEASE GUARANTOR TYPE CONTROL #'S
- ------- --------------- ----- -----------
<S> <C> <C> <C>
1 Allegheny Hospital, Centennial Bond 1,2,3
- ------------------------------------------------------------------------------------------------------------------------------------
2 Allegheny General Hospital Bond 1,2,3
- ------------------------------------------------------------------------------------------------------------------------------------
3 Allegheny General Hospital Bond 1,2,3
- ------------------------------------------------------------------------------------------------------------------------------------
4 Baptist Hospital, Inc. Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
5 Baptist Hospital, Inc. Bond 5,7,79,98
- ------------------------------------------------------------------------------------------------------------------------------------
6 Circuit City Stores, Inc. Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
7 Circuit City Stores, Inc. Bond 5,7,79,98
- ------------------------------------------------------------------------------------------------------------------------------------
8 Circuit City Stores, Inc. Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
9 Circuit City Stores, Inc. Bond 9,10
- ------------------------------------------------------------------------------------------------------------------------------------
10 Circuit City Stores, Inc. Bond 9,10
- ------------------------------------------------------------------------------------------------------------------------------------
11 Circuit City Stores, Inc. Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
12 Circuit City Stores, Inc. Bond 13
- ------------------------------------------------------------------------------------------------------------------------------------
13 Circuit City Stores, Inc. Bond 12
- ------------------------------------------------------------------------------------------------------------------------------------
14 Circuit City Stores, Inc. Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
15 Circuit City Stores, Inc. Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
16 Eckerd Corp. Triple Net 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
17 Federal Insurance Company Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
18 Fred Meyer, Inc. Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
19 Fred Meyer, Inc. Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
20 Fred Meyer, Inc. Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
21 Giant Food, Inc. Triple Net None
- ------------------------------------------------------------------------------------------------------------------------------------
24 Health Ins. Plan of Greater NY Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
25 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
26 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
27 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
28 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
29 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
30 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
31 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
32 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONTROL IDENTITY OF
NUMBER RELATED PARTY
- ------- -------------
1 U.S. Realty Advisors & SunAmerica
- --------------------------------------------------------------------------------
2 U.S. Realty Advisors & SunAmerica
- --------------------------------------------------------------------------------
3 U.S. Realty Advisors & SunAmerica
- --------------------------------------------------------------------------------
4 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
5 Devoe Moore
- --------------------------------------------------------------------------------
6 Health Facilities Credit Corporation
- --------------------------------------------------------------------------------
7 Devoe Moore
- --------------------------------------------------------------------------------
8 The Harold Rosinsky Trust
- --------------------------------------------------------------------------------
9 Wm. & Peter Anest
- --------------------------------------------------------------------------------
10 Wm. & Peter Anest
- --------------------------------------------------------------------------------
11 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
12 The Krupp Company, LP
- --------------------------------------------------------------------------------
13 The Krupp Company, LP
- --------------------------------------------------------------------------------
14 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
15 55 Equities Limited Partnership
- --------------------------------------------------------------------------------
16 Benderson 85-1 Trust
- --------------------------------------------------------------------------------
17
- --------------------------------------------------------------------------------
18 Benderson 85-1 Trust
- --------------------------------------------------------------------------------
19 Benderson 95 Trust
- --------------------------------------------------------------------------------
20 Benderson 95 Trust
- --------------------------------------------------------------------------------
21
- --------------------------------------------------------------------------------
24
- --------------------------------------------------------------------------------
25 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
26 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
27 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
28 Furniture Development Corporation
- --------------------------------------------------------------------------------
29 Furniture Development Corporation
- --------------------------------------------------------------------------------
30 Furniture Development Corporation
- --------------------------------------------------------------------------------
31 Furniture Development Corporation
- --------------------------------------------------------------------------------
32 Furniture Development Corporation
- --------------------------------------------------------------------------------
Page 7
<PAGE>
<TABLE>
<CAPTION>
RELATED
CONTROL TENANT/ LEASE LOAN
NUMBER LEASE GUARANTOR TYPE CONTROL #'S
- ------- --------------- ----- -----------
<S> <C> <C> <C>
33 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
34 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
35 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
36 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
37 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
38 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
39 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
40 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
41 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
42 Heilig-Meyers, Inc. Bond 25-27,36,38,40,42
- ------------------------------------------------------------------------------------------------------------------------------------
43 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
44 Heilig-Meyers, Inc. Bond 28-35,37,39,41,43-44
- ------------------------------------------------------------------------------------------------------------------------------------
45 Home Depot U.S.A., Inc. Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
48 Kmart Corp. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
49 Kmart Corp. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
50 Kmart Corp. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
51 Kmart Corp. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
52 The Times Mirror Company Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
53 County of Monroe, NY Triple Net None
- ------------------------------------------------------------------------------------------------------------------------------------
54 Nine West Group, Inc. Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
55 Northwestern Human Services Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
56 Northwestern Human Services Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
57 Northwestern Human Services Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
58 Office Depot, Inc. Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
59 The Golub Corporation (Price Chopper) Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
60 The Golub Corporation (Price Chopper) Triple Net None
- ------------------------------------------------------------------------------------------------------------------------------------
61 Q Clubs Inc. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
62 Q Clubs Inc. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
64 Q Clubs Inc. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
65 Q Clubs Inc. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
66 Q Clubs Inc. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
67 Q Clubs Inc. Bond 48-51,55-57,61-67
- ------------------------------------------------------------------------------------------------------------------------------------
68 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
69 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONTROL IDENTITY OF
NUMBER RELATED PARTY
- ------- -------------
33 Furniture Development Corporation
- --------------------------------------------------------------------------------
34 Furniture Development Corporation
- --------------------------------------------------------------------------------
35 Furniture Development Corporation
- --------------------------------------------------------------------------------
36 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
37 Furniture Development Corporation
- --------------------------------------------------------------------------------
38 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
39 Furniture Development Corporation
- --------------------------------------------------------------------------------
40 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
41 Furniture Development Corporation
- --------------------------------------------------------------------------------
42 Commack Land Dev. Assoc.
- --------------------------------------------------------------------------------
43 Furniture Development Corporation
- --------------------------------------------------------------------------------
44 Furniture Development Corporation
- --------------------------------------------------------------------------------
45
- --------------------------------------------------------------------------------
48 Corporate Realty
- --------------------------------------------------------------------------------
49 Corporate Realty
- --------------------------------------------------------------------------------
50 Corporate Realty
- --------------------------------------------------------------------------------
51 Corporate Realty
- --------------------------------------------------------------------------------
52
- --------------------------------------------------------------------------------
53
- --------------------------------------------------------------------------------
54
- --------------------------------------------------------------------------------
55 Corporate Realty
- --------------------------------------------------------------------------------
56 Corporate Realty
- --------------------------------------------------------------------------------
57 Corporate Realty
- --------------------------------------------------------------------------------
58
- --------------------------------------------------------------------------------
59
- --------------------------------------------------------------------------------
60
- --------------------------------------------------------------------------------
61 Corporate Realty
- --------------------------------------------------------------------------------
62 Corporate Realty
- --------------------------------------------------------------------------------
64 Corporate Realty
- --------------------------------------------------------------------------------
65 Corporate Realty
- --------------------------------------------------------------------------------
66 Corporate Realty
- --------------------------------------------------------------------------------
67 Corporate Realty
- --------------------------------------------------------------------------------
68 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
69 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
Page 8
<PAGE>
<TABLE>
<CAPTION>
RELATED
CONTROL TENANT/ LEASE LOAN
NUMBER LEASE GUARANTOR TYPE CONTROL #'S
- ------- --------------- ----- -----------
<S> <C> <C> <C>
70 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
74 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
75 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
76 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
77 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
78 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
79 Rite Aid Corporation Bond 5,7,79,98
- ------------------------------------------------------------------------------------------------------------------------------------
80 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
81 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
82 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
83 Rite Aid Corporation Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
84 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
85 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
86 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
87 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
88 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
89 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
90 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
91 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
92 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
93 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
94 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
95 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
96 Rite Aid Corporation Bond 4,68-70,74,89,95,96
- ------------------------------------------------------------------------------------------------------------------------------------
97 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
98 Rite Aid Corporation Bond 5,7,79,98
- ------------------------------------------------------------------------------------------------------------------------------------
99 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
100 Rite Aid Corporation Bond 11,14,16,18-20,76-78,90-92,97,99,100,114
- ------------------------------------------------------------------------------------------------------------------------------------
101 Rite Aid Corporation Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
102 Rite Aid Corporation Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
103 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
104 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
105 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
106 Rite Aid Corporation Bond 75,80-82,84-88,93,94,103-106
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONTROL IDENTITY OF
NUMBER RELATED PARTY
- ------- -------------
70 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
74 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
75 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
76 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
77 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
78 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
79 Devoe Moore
- --------------------------------------------------------------------------------
80 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
81 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
82 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
83 Kane
- --------------------------------------------------------------------------------
84 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
85 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
86 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
87 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
88 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
89 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
90 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
91 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
92 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
93 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
94 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
95 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
96 Wolverine Equities (Staubach)
- --------------------------------------------------------------------------------
97 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
98 Devoe Moore
- --------------------------------------------------------------------------------
99 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
100 Benderson 93-1 Trust & Benderson Development
- --------------------------------------------------------------------------------
101 Gross
- --------------------------------------------------------------------------------
102 Wiesel
- --------------------------------------------------------------------------------
103 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
104 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
105 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
106 UTFRA Limited Partnership
- --------------------------------------------------------------------------------
Page 9
<PAGE>
<TABLE>
<CAPTION>
RELATED
CONTROL TENANT/ LEASE LOAN
NUMBER LEASE GUARANTOR TYPE CONTROL #'S
- ------- --------------- ----- -----------
<S> <C> <C> <C>
107 Rite Aid Corporation Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
108 Rite Aid Corporation Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
109 Rite Aid Corporation Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
110 Rite Aid Corporation Double Net None
- ------------------------------------------------------------------------------------------------------------------------------------
111 Rite Aid Corporation Triple Net None
- ------------------------------------------------------------------------------------------------------------------------------------
112 Rite Aid Corporation Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
113 Time Warner/Adv. Newhouse Bond None
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONTROL IDENTITY OF
NUMBER RELATED PARTY
- ------- -------------
107 Alter
- --------------------------------------------------------------------------------
108 Borra Enterprises, LLC & Charles J. Sher
- --------------------------------------------------------------------------------
109
- --------------------------------------------------------------------------------
110
- --------------------------------------------------------------------------------
111
- --------------------------------------------------------------------------------
112 GSJ Realty Partners
- --------------------------------------------------------------------------------
113
- --------------------------------------------------------------------------------
Page 10
<PAGE>
XLIII(B)
IDENTITY OF TOTAL AMOUNT % OF
RELATED PARTY OF CTL POOL CTL POOL
------------- ------------ --------
U.S. Realty Advisors & SunAmerica $111,711,698.87 17.29%
- --------------------------------------------------------------------------------
Corporate Realty $100,532,296.51 15.56%
- --------------------------------------------------------------------------------
Benderson Development $88,318,519.86 13.67%
- --------------------------------------------------------------------------------
UTFRA Limited Partnership $44,802,912.20 6.93%
- --------------------------------------------------------------------------------
Wolverine Equities (Staubach) $42,972,807.64 6.65%
- --------------------------------------------------------------------------------
Furniture Development Corporation $21,947,137.00 3.40%
- --------------------------------------------------------------------------------
Devoe Moore $21,780,643.14 3.37%
- --------------------------------------------------------------------------------
Page 11
<PAGE>
Schedule II
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
2 Allegheny General Hospital 420 East North St. Pittsburgh PA
4 Baptist Hospital, Inc. 2011 Murphy Nashville TN
11 Circuit City Stores, Inc. 36300 Warren Rd Westland MI
14 Circuit City Stores, Inc. 3475 William Penn HWY Wilkins Township PA
21 Giant Food, Inc. 11200 Main Street Fairfax VA
48 Kmart Corp 310 Gardner Rd Taft CA
49 Kmart Corp Orchard & Clara Aves. Ukiah CA
50 Kmart Corp 375 E. Allesandro Blvd. Riverside CA
51 Kmart Corp 33201 Van Dyke Ave. Sterling Heights MI
53 County of Monroe, New York 50 West Main St. Rochester NY
54 Nine West Group, Inc. 1111-1113 Westchester Ave. White Plains NY
76 Rite Aid Corporation 2809 E. Cleveland Blvd. Caldwell ID
77 Rite Aid Corporation 204 Park Ave. Carrolton KY
78 Rite Aid Corporation 308 Parkway Dr. Salyersville KY
90 Rite Aid Corporation Salem & Grand Ave. Dayton OH
91 Rite Aid Corporation 34321 Center Ridge Road N. Ridgeville OH
92 Rite Aid Corporation 27299 Chagrin Boulevard Woodmere OH
97 Rite Aid Corporation 507 W. Elk Ave. Elizbethton TN
99 Rite Aid Corporation 2917 Brandon Ave, S.W. Roanoke VA
100 Rite Aid Corporation 1500 W Beverly St. Staunton VA
</TABLE>
Page 12
<PAGE>
Exhibit III-I
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
------- ----------- -------------- ---- -----
CONSTRUCTION LOANS
<S> <C> <C> <C> <C>
3 Allegheny General Hospital Federal St./W.N. Ave Pittsburgh PA
4 Baptist Hospital, Inc. 2011 Murphy Nashville TN
53 County of Monroe, New York 50 West Main St. Rochester NY
57 Northwestern Human Svcs, Inc. Coal Township Northumberland PA
113 Time Warner Entertainment, L.P. US Highway 92 Auburndale FL
BALLOON LOANS
<S> <C> <C> <C> <C>
68 Rite Aid Corporation 1175 Second Street Brentwood CA
69 Rite Aid Corporation 8585 Elk Grove Blvd. Elk Grove CA
70 Rite Aid Corporation 1935 N Street Newman CA
74 Rite Aid Corporation 1123 Donner Pass Road Truckee CA
75 Rite Aid Corporation 1271 Main St. Watertown CT
76 Rite Aid Corporation 2809 E. Cleveland Blvd. Caldwell ID
77 Rite Aid Corporation 204 Park Ave. Carrolton KY
78 Rite Aid Corporation 308 Parkway Dr. Salyersville KY
79 Rite Aid Corporation 27050 John R. Road Madison Hgts. MI
80 Rite Aid Corporation 416 Daniel Webster HWY Merrimack NH
81 Rite Aid Corporation 86 Elm St. Milford NH
82 Rite Aid Corporation 160 Washington Ave. Carteret NJ
83 Rite Aid Corporation 8530 W. Lake Mead Blvd. Las Vegas NV
84 Rite Aid Corporation 400 Suffolk Ave. Brentwood NY
85 Rite Aid Corporation 2532-54 86th St. Brooklyn NY
86 Rite Aid Corporation Rt 9 W & Cauterskill Catskill NY
87 Rite Aid Corporation SEC Rt 9 & 11 Champlain NY
88 Rite Aid Corporation 2 Central Ave. Ravena NY
89 Rite Aid Corporation E. 71st & Harvard Cleveland OH
90 Rite Aid Corporation Salem & Grand Ave. Dayton OH
91 Rite Aid Corporation 34321 Center Ridge Road N. Ridgeville OH
92 Rite Aid Corporation 27299 Chagrin Boulevard Woodmere OH
93 Rite Aid Corporation 90 "B" Avenue Lake Oswego OR
94 Rite Aid Corporation 435 Liberty St, N.E. Salem OR
95 Rite Aid Corporation 5100 Library Road Bethel Park PA
96 Rite Aid Corporation 5400 Rising Sun Avenue Philadelphia PA
97 Rite Aid Corporation 507 W. Elk Ave. Elizbethton TN
98 Rite Aid Corporation 3460 S. 5600 West West Valley UT
99 Rite Aid Corporation 2917 Brandon Ave, S.W. Roanoke VA
100 Rite Aid Corporation 1500 W Beverly St. Staunton VA
101 Rite Aid Corporation 1660 Independence Blvd. Virginia Beach VA
102 Rite Aid Corporation 9 Susie Wilson Rd. Essex Junction VT
103 Rite Aid Corporation US Rt 7 Middlebury VT
104 Rite Aid Corporation 700 S. Main Street Ellensburg WA
105 Rite Aid Corporation 1630 Grand Ave. Pullman WA
106 Rite Aid Corporation 5606 Summitview Ave. Yakima WA
107 Rite Aid Corporation 3175 W. DuPont Ave Belle WV
</TABLE>
Page 13
<PAGE>
Exhibit III-II
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
16 Eckerd Corporation 414 Atlantic Blvd. Neptune Beach FL
17 Federal Insurance Company 12 Vreeland Rd. Florham Park NJ
21 Giant Food, Inc. 11200 Main Street Fairfax VA
24 Health Ins. Plan of Greater NY 96-10 Metropolitan Ave. Forest Hills NY
45 Home Depot U.S.A., Inc. 7200 S. Cicero Avenue Bedford Park IL
52 Times Mirror Company 23252 Moulton Pkwy. Laguna Hills CA
53 County of Monroe, NY 50 West Main St. Rochester NY
58 Office Depot, Inc. 7420-7444 Brook Park Rd. Brooklyn OH
60 The Golub Corporation (Price Chooper) Lot 2, North Main St. St. Albans VT
109 Rite Aid Corporation 939 US 31 South Traverse City MI
110 Rite Aid Corporation 5 Saco Ave. Old Orchard Beach ME
111 Rite Aid Corporation 10-20 West Main Street Landsdale PA
</TABLE>
Page 14
<PAGE>
Exhibit III-III
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
16 Eckerd Corporation 414 Atlantic Blvd. Neptune Beach FL
17 Federal Insurance Company 12 Vreeland Rd. Florham Park NJ
21 Giant Food, Inc. 11200 Main Street Fairfax VA
24 Health Ins. Plan of Greater NY 96-10 Metropolitan Ave. Forest Hills NY
45 Home Depot U.S.A., Inc. 7200 S. Cicero Avenue Bedford Park IL
52 Times Mirror Company 23252 Moulton Pkwy. Laguna Hills CA
53 County of Monroe, NY 50 West Main St. Rochester NY
58 Office Depot, Inc. 7420-7444 Brook Park Rd. Brooklyn OH
60 The Golub Corporation (Price Chooper) Lot 2, North Main St. St. Albans VT
109 Rite Aid Corporation 939 US 31 South Traverse City MI
110 Rite Aid Corporation 5 Saco Ave. Old Orchard Beach ME
111 Rite Aid Corporation 10-20 West Main Street Landsdale PA
</TABLE>
Page 15
<PAGE>
Exhibit III-VIII
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
16 Eckerd Corporation 414 Atlantic Blvd. Neptune Beach FL
17 Federal Insurance Company 12 Vreeland Rd. Florham Park NJ
21 Giant Food, Inc. 11200 Main Street Fairfax VA
24 Health Ins. Plan of Greater NY 96-10 Metropolitan Ave. Forest Hills NY
45 Home Depot U.S.A., Inc. 7200 S. Cicero Avenue Bedford Park IL
52 Times Mirror Company 23252 Moulton Pkwy. Laguna Hills CA
53 County of Monroe, NY 50 West Main St. Rochester NY
58 Office Depot, Inc. 7420-7444 Brook Park Rd. Brooklyn OH
60 The Golub Corporation (Price Chooper) Lot 2, North Main St. St. Albans VT
109 Rite Aid Corporation 939 US 31 South Traverse City MI
110 Rite Aid Corporation 5 Saco Ave. Old Orchard Beach ME
111 Rite Aid Corporation 10-20 West Main Street Landsdale PA
</TABLE>
Page 16
<PAGE>
Exhibit III-IX
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
16 Eckerd Corporation 414 Atlantic Blvd. Neptune Beach FL
17 Federal Insurance Company 12 Vreeland Rd. Florham Park NJ
21 Giant Food, Inc. 11200 Main Street Fairfax VA
24 Health Ins. Plan of Greater NY 96-10 Metropolitan Ave. Forest Hills NY
45 Home Depot U.S.A., Inc. 7200 S. Cicero Avenue Bedford Park IL
52 Times Mirror Company 23252 Moulton Pkwy. Laguna Hills CA
53 County of Monroe, NY 50 West Main St. Rochester NY
58 Office Depot, Inc. 7420-7444 Brook Park Rd. Brooklyn OH
60 The Golub Corporation (Price Chooper) Lot 2, North Main St. St. Albans VT
109 Rite Aid Corporation 939 US 31 South Traverse City MI
110 Rite Aid Corporation 5 Saco Ave. Old Orchard Beach ME
111 Rite Aid Corporation 10-20 West Main Street Landsdale PA
</TABLE>
Page 17
<PAGE>
Exhibit III-XIII
TENANT/GUARANTOR
----------------
Rite Aid Corporation
Allegheny General Hospital
Circuit City Stores, Inc.
Nine West Group, Inc.
Fred Meyer, Inc.
Q Clubs, Inc.
Northwestern Human Services, Inc.
Heilig-Meyers Company
Baptist Hospital, Inc.
Kmart Corp.
Home Depot U.S.A., Inc.
Federal Insurance Company
County of Monroe
Health Insurance Plan of Greater New York
The Golub Corporation (Price Chopper)
Allegheny Hospitals, Centennial
Giant Food, Inc.
Office Depot, Inc.
The Times Mirror Company
Time Warner Entertainment, L.P.
Eckerd Corp.
Page 18
<PAGE>
Exhibit III-XIX
FILE
CONTROL COMMON PROPERTY
NUMBER TENANT NAME ADDRESS
- ------- ----------- --------
55, 56, & 57 Northwestern Human Services, Inc. 40 Properties in PA & NJ
Page 19
<PAGE>
Exhibit III-XX
NONE
Page 20
<PAGE>
Exhibit III-XXII
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
21 Giant Food, Inc. 11200 Main Street Fairfax VA
</TABLE>
The Tenant makes all ground lease payments directly to ground lessor out of
rents due borrower.
Page 21
<PAGE>
Exhibit III-XXIII
<TABLE>
<CAPTION>
FILE
CONTROL COMMON PROPERTY PROPERTY PROPERTY
NUMBER TENANT NAME STREET ADDRESS CITY STATE
- ------- ----------- -------------- ---- -----
<S> <C> <C> <C> <C>
3 Allegheny General Hospital Federal St./W.N. Ave Pittsburgh PA
4 Baptist Hospital, Inc. 2011 Murphy Nashville TN
53 County of Monroe, New York 50 West Main St. Rochester NY
57 Northwestern Human Svcs, Inc. Coal Township Northumberland PA
113 Time Warner Entertainment, L.P. US Highway 92 Auburndale FL
</TABLE>
Page 22
